The Supreme Court of Canada’s latest ruling on freedom of information (FOI) is bad. The only question is how bad.

In a decision released in February, the court endorsed the Ontario government’s refusal to release the mandate letters sent by Premier Doug Ford to his cabinet ministers in 2018, his first year in office. Ontario argued that doing so would reveal cabinet confidences.

The decision follows in the footsteps of two earlier Supreme Court rulings which also expanded exemptions in FOI laws that allow governments to refuse to release records that relate to legal privilege or policy advice.

The February decision was in a case that began in 2018 when the CBC made a request under the Ontario Freedom of Information and Protection of Privacy Act for the mandate letters. The Ford government refused, citing Section 12 of the legislation.

Like similar provisions in other FOI laws in this country, this section allows a government to refuse to release information if that would “reveal the substance of [Cabinet] deliberations.”

These sections were put into the FOI laws to protect the ability of cabinet ministers to have full and frank discussions of important issues without fear of those discussions becoming public.

These sections – and the common law principles on which they are based – were also intended to protect cabinet solidarity, which could be undermined if records were released of cabinet ministers expressing doubts about the wisdom of a particular government policy or course of action before it was adopted.

Mandate letters have been public, in practice

At first glance, the facts in the case would not appear to favour the government’s position.

It has become common in recent years for the federal and some provincial governments to release the mandate letters sent to ministers and make them available on the internet.

The previous Liberal government in Ontario had followed this practice but Ford decided against it after winning the 2018 provincial election. (The letters were later leaked but the government continued to fight against their formal release.)

It isn’t obvious how these 2018 letters setting out what the premier expected from his ministers at that time would reveal cabinet discussions or make ministers more reluctant to express themselves freely in cabinet meetings – the public good that this exception is supposed to protect.

The legal precedents in Ontario on this point were also against the government. Unsurprisingly, the government lost its argument before the provincial information and privacy commissioner, then lost twice more on appeal with a 2-1 decision going against it in the Ontario Court of Appeal.

Despite these failures, the Ford government asked the Supreme Court of Canada for leave to appeal, which was granted.

That was not as surprising as it might seem at first glance.

Open to interpretation

There had been differing approaches to interpreting the cabinet-confidence sections of various provincial FOI laws, with B.C. courts taking a harder line against disclosure in 1996 in a case called Aquasource, while other courts, including in a Nova Scotia case called O’Connor, took a more open stance. Clearly, the Supreme Court thought it was time to clarify the law.

The Supreme Court’s unanimous decision in February sets out in no uncertain terms that claims of cabinet privilege will take precedence over provisions in FOI laws in favour of transparency, but several points will probably cause confusion and litigation for years to come.

The majority decision – written by Justice Andromache Karakatsanis, a former clerk of the Ontario executive council, (concurred in by Justice Malcolm Rowe, a former clerk of the Newfoundland and Labrador executive council) – does not refer to either the Aquasource or O’Connor cases.

Instead, the court set out a new approach which is best characterized as deference to claims of cabinet confidence, even if supported by little evidence beyond a bald assertion by a government that the release of the information would reveal cabinet confidences.

The high court found that the Ontario information and privacy commissioner (IPC) had taken into account the need for ministerial candour and solidarity in his decision but said he fell down on two points.

The first was he didn’t give suitable weight to the Ford government’s argument that releasing the mandate letters would impede the efficiency of government decision-making. The court ruling said:

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“Despite the submissions of Cabinet Office that disclosure of the mandate Letters could harm the efficacy of the Cabinet decision-making process (A.R., vol. III, at pp. 101-2), the Commissioner did not engage with a core purpose of Cabinet secrecy to promote the efficiency of the collective decision making, nor with the ultimate goal of this constitutional convention: effective government. This was critical context to interpreting s. 12(1). [Paragraph 32]”

The word efficiency comes up repeatedly in the judgment and it appears to relate to the timing of the release of information about the government’s decision-making process. To wit:

“To the extent the IPC required evidence linking the Letters to ‘actual Cabinet deliberations at a specific Cabinet meeting,’ that approach was unreasonable. Such a requirement is far too narrow and does not account for the realities of the deliberative process, including the Premier’s priority-setting and supervisory functions, which are not necessarily performed at a specific Cabinet meeting and may occur throughout the continuum of Cabinet’s deliberative process. [Paragraph 54]”

This approach gives governments the scope to argue that records being sought under FOI laws are part of the cabinet’s “deliberative process,” even if they are not on a cabinet agenda.

The court decision does not provide much guidance to information and privacy commissioners in terms of what evidence a government will have to provide to show that the requested records are part of the government’s deliberative process, except that it does not have to relate to a particular cabinet meeting.

Ministerial mandate letters: Another nail in the coffin of cabinet government

Mandate letters should be kept confidential

The court opened up the scope of what a government can use as justification for resisting the release of documents by stating that the Ontario commissioner failed to give proper consideration to constitutional conventions. It wrote:

“Given the centrality of such traditions and conventions to the proper functioning of our democracy, it was vital that the IPC’s decision meaningfully consider this context. His failure to do so led him to an unreasonably narrow interpretation of s. 12(1) and caused him to mischaracterize the Letters themselves. [Paragraph 21]”

This expansive approach to what is a cabinet confidence is based in part on the court’s citation of this 1966 House of Lords decision and provides an important insight into their reasoning:

“[The premature disclosure of Cabinet secrets] would create or fan ill-informed or captious public or political criticism. The business of government is difficult enough as it is, and no government could contemplate with equanimity the inner workings of the government machine being exposed to the gaze of those ready to criticize without adequate knowledge of the background and perhaps with some axe to grind. [Paragraph 35]”

There is some irony that at a time when the importance of the cabinet in the governing process has been diminished in many Canadian jurisdictions, the Supreme Court has ensured it still has an important role to play in preventing “uninformed” criticism of the government.

Government secrecy is the only winner

There does not appear to be an upside in this decision other than for governments hoping to keep information away from requesters.

If anything, it has added uncertainty about what a government will have to introduce as evidence to an information and privacy commissioner to justify a claim of cabinet confidence, not to mention the wild card of “constitutional conventions,” which commissioners will now have to consider.

As Justice Suzanne Côté pointed out in her separate reasons, the majority decision has even thrown into confusion the standard of review for commissioners’ decisions about cabinet confidences.

“I cannot agree that ‘it is not necessary to finally resolve’ the question of the applicable standard of review,” she wrote, citing Justice Karakatsanis’s decision. “In my view, the scope of Cabinet privilege falls within the already existing Vavilov category of general questions of law of central importance to the legal system as a whole. This question is thus subject to correctness review. [Paragraph 67]”

This decision is a failure in clarifying the law, while also reducing Canadians’ access rights.

The court could have – and should have – done better.