More than five years after Premier Doug Ford’s first cabinet received its mandate letters, the Supreme Court of Canada has decided whether they need to be made public under Ontario’s freedom-of-information law. The answer — one that reverses the decisions of two lower courts — is no, the mandate letters do not need to be disclosed. The decision is moot in one sense: all the cabinet mandate letters from summer 2018 were disclosed to Global News last year, and they can all be read online. But the case marks a vindication for the Ford government and a defeat for journalism (the CBC was the party seeking the letters) and for freedom of expression more broadly.
For now.
The key question in this case was whether cabinet mandate letters were exempt from Ontario’s Freedom of Information and Privacy Protection Act’s disclosure requirements. FIPPA requires that government documents generally be made available to the public, unless they fall under certain exemptions — including Section 12 of the act, which spells out documents covered by cabinet confidentiality.
Ontario’s information and privacy commissioner determined that the mandate letters involved the final results of cabinet consultations (rather than important details of cabinet debates) and so should be released — an interpretation that was confirmed by Ontario’s Divisional Court and Court of Appeal. On Friday, the Supreme Court said (with all judges agreeing on this point) that the commissioner was wrong to interpret cabinet confidentiality so narrowly.
“Cabinet confidentiality both enables the proper functioning of responsible government by promoting collective ministerial accountability to the legislature and affords the executive the operational space it needs to function effectively,” the majority decision reads. “These functions are crucial both to the principle of responsible government and to the separation of powers.”
Ford’s critics will undoubtedly be disappointed by the Supreme Court’s decision, and not without reason. However, the high court’s verdict isn’t terribly surprising in the broader context of Canadian law; in many respects, it was the lower court decisions that were more eyebrow-raising. Cabinet confidentiality isn’t novel or trivial: as Friday’s decision reiterated, it’s a constitutional convention that courts should treat carefully before eroding. Governments are collectively responsible for their decisions — everyone in cabinet is expected to support its policies — and part of guaranteeing that collective responsibility is allowing the premier and their ministers to have frank and thorough debates outside the spotlight.
In that sense, the court’s decision is… fine. As a journalist, I’d have preferred another outcome — for the potential troublemaking it would allow, if nothing else — but this was always the likelier result. The question is what advocates for freedom of expression will do now.
The good news is that the Supreme Court’s decision doesn’t close the door on any number of potential ideas for a more reform-minded government: the justices have simply said that Section 12 of Ontario’s current freedom-of-information laws doesn’t require the disclosure of these mandate letters. The next legislature could amend the law to make it explicit that mandate letters are, in fact, required to be disclosed, notwithstanding the broader principles of cabinet confidentiality.
It would be a shame, however, if Ontario politics were to stop there. While disputes between Ford and his critics have a tendency to imbue certain items with larger-than-life significance, the honest truth about the mandate letters is that they simply aren’t that important. They tell us relatively little that the government’s press releases hadn’t already. And such letters started to be disclosed regularly only under Kathleen Wynne’s government in 2015. To put it bluntly, if the next progressive Ontario government starts releasing mandate letters again and we call it a “win,” we’ll be deluding ourselves and mistaking theatre for substance.
A real progressive agenda for freedom of information would include the mandate letters but also go much further: Ontario’s current system is largely a joke, and the only consolation is that it may not be as bad as the federal one. Starting from the position that citizens have a right to know what their government is doing and why, there’s plenty of room to improve access to government documents while still preserving some space for cabinet confidentiality. Simply guaranteeing speedier responses to FOI requests (California’s law requires production within 30 days) would represent a revolution in public access.
As I said when the Ford government won previously at the Supreme Court — in that case, when the justices narrowly allowed the ham-handed and undemocratic attack on Toronto city council in the midst of the 2018 municipal elections — our role as citizens isn’t to take every Supreme Court decision as the final word. (Conservatives, notably, haven’t mistaken the court’s judgment about the constitutionality of the federal carbon tax for a commandment.) We can demand better of our government, and if the court has said, in this narrow case, that the current government was within its rights, that simply means that voters must push harder for the changes they want to see.
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