Supreme Court of Canada Agrees With Ontario That Premier Ford’s Mandate Letters Are Private

Ontario Premier Doug Ford tours a laboratory in Brampton, Ont., on Feb. 15, 2023. The Canadian Press/Christopher Katsarov

Canada’s top court has sided with the Ontario government in its fight to keep Premier Doug Ford’s 2018 mandate letters to cabinet out of the public eye.

The unanimous decision by the Supreme Court of Canada on Feb. 2 marks the end of an ongoing legal battle over access to the documents that the province has insisted are confidential because they would disclose the substance of cabinet deliberations.

“Far from being mere ’topics’ like items on an agenda, the Letters reflect the views of the Premier on the importance of certain policy priorities, and mark the initiation of a fluid process of policy formulation within Cabinet,” Justice Andromache Karakatsanis wrote in the majority decision.

“The letters are revealing of the substance of Cabinet deliberations, both on their face and when compared against what government actually does.”

The province has appealed several court orders, including an Information and Privacy Commissioner of Ontario ruling, to disclose the documents since denying CBC’s freedom-of-information request to see the letters.

The letters, which were written to ministers after Mr. Ford won the 2018 election, are traditionally given to members of cabinet at the beginning of their terms. The letters explain the priorities and expectations the premier has for each portfolio.

The mandate letter fight finally reached Canada’s top court last April.

The province described cabinet confidentiality as a crucial part of a system in which ministers decide government policy, but the CBC argued disclosure was essential to keeping the public informed and the government accountable.

Judge Karakatsani said that freedom of information legislation “strikes a balance between the public’s need to know and the confidentiality the executive requires to govern effectively,” adding that “both are crucial to the proper functioning of our democracy.”

But he and his fellow judges ultimately sided with the province, saying the office of the privacy commissioner had “adopted an incorrect interpretation” about the “scope of Cabinet privilege” when it sided with CBC.

​​The interpretation of the section of Ontario’s Freedom of Information and Protection of Privacy Act (FIPPA) that deals with cabinet privacy was at the centre of the mandate letter case.

The second section of FIPPA contains a cabinet record exemption that states “a head shall refuse to disclose a record where the disclosure would reveal the substance of deliberations of the executive council or its committees.” This means such records are exempt from public disclosure.

A number of organizations appeared before the Supreme Court to argue that the province’s interpretation of the legislation would significantly widen the range of records the government could keep private, saying that such a decision would undermine the ability of the public to keep governments accountable.

The court disagreed, saying that “the confidentiality of Cabinet deliberations is a precondition to responsible government because it enables collective ministerial responsibility” as well as the ability to “private disagreement and candour in ministerial deliberations, despite public solidarity.”

A CBC spokesperson said in a statement that the media firm is “disappointed” by the court’s decision, but added that the broadcaster appreciates the Supreme Court “has now provided clarity in the law.”

NDP and Official Opposition Leader Marit Stiles said the court’s decision doesn’t release the premier from his obligation to be “transparent” and “accountable for his actions” to voters.

“I can’t as a political leader understand why a government wouldn’t be excited to share with the people of the province what their intentions are. Unless there’s something you’re trying to hide,” Ms. Stiles said in a press conference. “I think in the case of this government, it’s pretty clear that they are insisting on hiding their plans from the public and they’ll go to extremes as high up as the Supreme Court to be able to do that.”

Liberal Leader Bonnie Crombie called the decision to keep the mandate letters private “alarming,” saying that the “government has consistently operated behind closed doors.”

“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,” she wrote in a statement. “Ontario citizens should be able to trust that their premier will act in the public’s best interest.”