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Canada's highest court releases decision on Ontario cabinet letters, sides with Premier Doug Ford

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Canada’s top court has agreed with the Ontario government that Premier Doug Ford’s mandate letters to cabinet are exempt from freedom of information laws.

The Supreme Court of Canada judgement, which was heard by a seven-person panel in April, was released Friday morning.

The court concluded the mandate letters did “reflect the view of the Premier on the importance of certain policy priorities and mark the initiation of a fluid process of policy formulation within Cabinet.”

“The letters are revealing of the substance of Cabinet deliberations,” they concluded.

In the ruling, Justice Andromache Karakatsanis pointed out that the premier and cabinet have the “prerogative to determine when and how to announce its decisions.”

“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,” she wrote.

“This is necessary so ministers do not censor themselves in policy debate, and so ministers can stand together in public, and be held responsible as a whole, once a policy decision has been made and announced.”

The ruling was unanimous.

This case began six years ago when the CBC made a freedom of information request for the 23 mandate letters Premier Doug Ford gave to his cabinet ministers after first being elected in 2018.

A mandate letter is typically a generic document that outlines the responsibilities of a minister as well as the premier’s priorities for their file.

The government denied the CBC’s request, citing cabinet exemptions, specifically section 12 of the Freedom of Information and Protection of Privacy Act. They argued that releasing the letters publicly would reveal the substance of deliberations of the premier and his cabinet.

The media outlet appealed to the Ontario Information and Privacy Commissioner (IPC), who ordered the release of the letters.

The government appealed this decision at two other provincial courts, only to have their applications dismissed.

The Supreme Court of Canada is the only court to side with the Ford government and allow their appeal of the commissioner’s decision to stand.

According to Karakatsanis, the IPC’s decision was “unreasonable.”

“Cabinet confidentiality creates conditions necessary to ensure an effective government,” she wrote.

“The Commissioner did not consider a key rationale underlying the convention: promoting the efficiency of the collective decision-making process.”

The IPC’s view, while “intelligible and transparent,” was too narrow, the court found.

CTV News Toronto has requested comment from the premier’s office but has yet to hear back.

Decision to keep mandate letters secret is ‘political,’ expert says

Scott Reid, CTV News’ political commentator, stressed that cabinet privilege has real importance and allows for true discussion and debate among government officials.

“It means that cabinet can discuss important matters, particularly around financial considerations, might be security matters, policing matters, and make certain those discussions aren’t disclosed publicly,” he said.

“The ability to keep those discussions private is important.”

However, he argued that mandate letters are typically more generic and “are not secretive.” While legally the premier does not have to reveal his instructions to cabinet, Reid argues it’s not a great look for Ford.

“It comes in the context of the Greenbelt investigations, of suggestions of people paying certain money to get certain kinds of results,” he said.

“It seems strange to me that he would want to compound people’s suspicions by keeping these mandate letters secret rather than opening them up and dispelling the myth that there must be some grand conspiracy at play here.”

“It’s a political decision to open up these letters to the public. It’s a political decision to keep them closed.”

Ontario Premier Doug Ford speaks during question period at Queen's Park in Toronto on Tuesday, September 26, 2023. THE CANADIAN PRESS/Carlos Osorio

The Ontario New Democratic Party argued the people of Ontario deserve to know what the premier instructed his cabinet ministers to do.

At a news conference, Leader Marit Stiles told reporters the government has spent hundreds of thousands of dollars and hours fighting to keep these letters a secret.

“I don’t understand why a government wouldn’t be excited to share what their intentions are,” Stiles said. “Unless there is something you are trying to hide.”

In a statement, the Ontario Liberal Party agreed with the notion that 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. Ontario citizens should be able to trust that their Premier will act in the public’s best interest,” Leader Bonnie Crombie said in a statement.

The Ontario Green Party, meanwhile, said it “sets a poor precedent for democracy in Ontario.”

“The people of Ontario are entitled to transparency and accountability from their elected officials,” Leader Mike Schreiner said.

Canada's Liberal and NDP premiers, as well as Prime Minister Justin Trudeau, have chosen to post their cabinet mandate letters. publicly.

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