Will Supreme Court mandate letters ruling worsen transparency in Ontario?

As Ontario Premier Doug Ford and his government celebrate winning a years-long privacy battle at the Supreme Court of Canada, some are raising concerns the precedent-setting decision could harm transparency in the future.

On Friday, a panel of seven Supreme Court judges unanimously agreed mandate letters written by Ford to his 2018 ministers were covered by cabinet confidentiality rules and do not have to be made public.

The ruling, which ended a battle over the instructions Ford wrote in 2018, agreed with Cabinet Office officials and provincial lawyers that the concept of cabinet confidentiality is broad and covers a wide range of documents and conversations.

Specifically, the Supreme Court said mandate letters were covered under the rule.

Bruce Ryder, a professor at York University’s Osgoode Hall Law School, said cabinet confidentiality is the idea that cabinet discussions need to be secret to allow ministers to speak their minds.

“(It exists) so that policies that are being debated, are fully debated and people debate without fear of public disclosure,” he told Global News.

“People can just express their views in an unhindered way. The idea is that out of that process of secret deliberations comes the best policy decisions.”

That principle, which the Supreme Court reiterated on Friday is a central plank of the Canadian constitution and system of government, is broad.

In several parts of their decision, Supreme Court judges explained just how expansive they believed cabinet confidentiality to be.

In particular, the judgment found that, as the head of cabinet, Ford’s deliberations “cannot be artificially segmented from those of Cabinet,” potentially adding the weight of cabinet confidentiality to more decisions and musing from the premier.

The Supreme Court also said that the “dynamic and fluid nature” of cabinet deliberations means “not all stages of the process take place sitting around the Cabinet table behind a closed door.”

According to Jeffrey Dvorkin, former head of the University of Toronto’s journalism program, current and future governments could seize on that idea to keep more information secret.

“All governments are secretive and some governments are more secretive than others,” he said.

“It means that journalists need to act on behalf of the public in using requests through the freedom of information legislation to do this for the benefit of the citizens. And governments will always resister that because that’s in their nature.”

There are some fears, however, that freedom of information laws — which allow various governments documents and communications to be made public — could become harder to use as a result of the Supreme Court’s decision and broad description of what cabinet confidence means.

“The breadth of the reasoning in this opinion makes it possible for governments to claim that any document that has a connection to a future deliberation of cabinet potentially falls within the cabinet secrecy exception,” Ryder said.

“And I think there is a real danger of abuse of that line of reasoning and we know that governments try to exploit every possible loophole in our freedom of information laws.”

The advocacy group Democracy Watch also criticized the ruling.

“The ruling is very bad because it ignores the fact that the Premier and ministers openly talk about their priorities during elections, in election platforms, and regularly in the legislature, to the media and at public events,” co-founder Duff Conacher said.

Ontario NDP Leader Marit Stiles says the idea cabinet confidentiality could be expanded outside of the cabinet room and to broader deliberations of the premier himself is “also concerning” and is open to being misused.

“I think that this government and their staff and their cabinet ministers are absolutely intentionally using those paths as ways to avoid accountability,” she said, referencing questions over Doug Ford’s personal cell phone and officials using personal email accounts.

“At the end of the day, should we have to wait for court rulings on these things? Or do people have a right to know what their government’s intentions are?”

Ontario Green Party Leader Mike Schreiner said the Supreme Court decision “sets a poor precedent for democracy in Ontario.”

A spokesperson for the Information and Privacy Commission, the body that oversees freedom of information requests in Ontario, said they were still digesting the ruling.

“We appreciate the significance of the Supreme Court’s decision and are examining its broader implications,” they said. “We would be pleased to follow up with you when we have a statement ready.”

The spokesperson did not comment on whether or not the ruling would expand the number of transparency requests the government could knock back.