Premier Ford’s mandate letters will not be divulged, rules the Supreme Court of Canada

CBC wanted access to the mandate letters (Letters) that Doug Ford, Premier of Ontario, gave to each of his ministers shortly after he formed his first cabinet in 2018. 

The Ontario Cabinet Office refused this request on the grounds that access to the Letters was restricted under subsection 12(1) of Ontario’s Freedom of Information and Protection of Privacy Act (the Act), which is equivalent to Quebec’s Act respecting access to documents held by public bodies and the protection of personal information (Quebec’s Act Respecting Access)¹. This provision states that a document "which would have the effect of revealing the purpose of the deliberations of the Executive Council or its committees" is exempt from the application of the Act and cannot be disclosed. 

CBC appealed this decision to the Information and Privacy Commissioner of Ontario (Commissioner).

Judicial background

The Commissioner ruled that access to the Letters was not restricted under subsection 12(1) of the Act, and ordered that they be disclosed. In his view, there was no indication that the Letters had served or were intended to serve as the basis for Cabinet deliberations: rather, they referred to general policy issues or directions that would be discussed or considered at future Cabinet meetings. 

Sitting on judicial review, the Ontario Divisional Court characterized this decision as reasonable, an opinion subsequently shared by the majority of the Ontario Court of Appeal. 

Supreme Court ruling² 

On behalf of the majority, Karakatsanis J. began by recalling the balance sought by access to information legislation: access to information fosters the transparency required for executive accountability in order to ensure responsible government, but the executive must also benefit from a certain measure of confidentiality in order to govern effectively, particularly during Cabinet deliberations.

For the majority judges, the constitutional dimension of Cabinet secrecy was a "crucial" element in interpreting subsection 12(1), and the Commissioner did not sufficiently take into account the legal and factual constraints operating on subsection 12(1) of the Act which "implicate constitutional conventions and traditions governing Cabinet confidentiality and Cabinet’s deliberative process." 

Karakatsanis J. lists three reasons for Cabinet secrecy, a concept derived from the "collective ministerial responsibility." She explains that ministers must be able to express themselves frankly during Cabinet deliberations, without fear of their words being disclosed to the public (1), so that they show solidarity in public when the decisions taken as a result of these deliberations are revealed and can be held jointly and severally accountable (2), thus helping to ensure the efficacy of government (3). The Commissioner took into account only the first two reasons for Cabinet secrecy, failing to consider the third, efficiency, which was "crucial context" to interpreting subsection 12(1), and which led him to "ascribe an overly narrow purpose" to subsection 12(1).

Furthermore, the executive must be given a certain amount of latitude in deciding when and how to announce a ministerial decision. Strategic directions and considerations still at the embryonic stage should not be disclosed, as this would invite undue public attention before a firm decision is taken, which could therefore influence the final outcome or "paralyze the collective decision-making process." The rationale for Cabinet secrecy, and the possible adverse consequences of premature disclosure of elements of the decision-making process, therefore invite a broad interpretation of this secrecy.

The Commissioner did not recognize this prerogative of the government, which led him to conclude that the outcomes of the deliberative process are not encompassed by subsection 12(1) of the Act. In doing so, the Commissioner concluded that the Letters did not disclose " the substance of the Premier’s deliberations" because they were "the end point" or the "product" of his deliberative process. The Commissioner also "drew an artificial dichotomy between the Premier’s deliberative process, and the rest of Cabinet’s." Far from giving a limited interpretation to the deliberative process, the majority judges give it a very broad interpretation:

"The dynamic and fluid nature of Cabinet’s deliberative process also means that not all stages of the process take place sitting around the Cabinet table behind a closed door. The decision-making process in Cabinet extends beyond formal meetings of Cabinet or its committees, and encompasses “[o]ne-on-one conversations in the corridors . . ., in the [first minister’s] office . . ., over the phone, or however and wherever they may take place”."³ 

For the majority, the Letters are only the beginning of the Cabinet deliberative process and, as such, fit squarely within the exception set out in subsection 12(1) of the Act. The judges also disagree with the Commissioner's requirement for evidence linking the Letters to "actual deliberations" by Cabinet, given the fluid and dynamic nature of executive decision-making and the integral role the Premier plays in the deliberative process. Karakatsanis J. notes that the Letters may be revealing of the substance of Cabinet deliberations "when compared against subsequent government action" and concludes that the term "deliberation" includes the outcomes or decisions of the Cabinet's deliberative process, even if no government action ultimately results.

In short, the majority of the Supreme Court allowed the Ontario Attorney General's appeal and quashed the order for disclosure of the Commissioner's Letters.

Practical consequences

The Supreme Court favours a broad and liberal interpretation of Cabinet secrecy and the term "deliberations." Courts are likely to be reluctant to order disclosure of any document that falls within the continuum of executive decision-making.

This decision will likely have repercussions beyond Ontario's borders. Karakatsanis J. notes that all access to information legislation in the country reconciles the two essential objectives of "the public’s need to know" and the confidentiality required for effective governance, and that provisions similar to subsection 12(1) of the Act are included in the access to information legislation of most Canadian provinces. 

In Quebec, sections 30 to 38 of Quebec’s Act Respecting Access are equivalent to subsection 12(1) of the Act. It should be noted that the Government of Quebec, the Conseil exécutif, the Conseil du trésor, government departments and agencies are public bodies within the meaning of the Act, and are therefore covered by it. It should also be noted that the Premier of Quebec is a member of the Conseil exécutif.

Section 30 (subsection 1) of Quebec’s Act Respecting Access allows the Conseil exécutif to refuse to disclose a "decision resulting from its deliberations or a decision of one of its cabinet committees, until the day that is 25 years after the date on which it was made." This wording restricts the disclosure exception to a decision resulting from the deliberations, while subsection 12(1) of the Act at issue here refers to "the substance of the deliberations." This distinction seems relevant, especially since the analysis of the majority of the Court is based on the fluid and dynamic nature of deliberations. 

That being said, section 33 of Quebec’s Act Respecting Access lists a series of eight exceptions to disclosure before the expiry of a 25-year period, including:

• communications from the Conseil exécutif to one or more of its members, the Conseil du trésor or a cabinet committee (subsection 33(1));
• communications from one or more members of the Conseil exécutif to one or more other members of the Conseil, the Conseil exécutif, the Conseil du trésor or a cabinet committee (subsection 33(2)); 
• recommendations from the Conseil du trésor or a cabinet committee to the Conseil exécutif (subsection 33(3));
• records or reports of the deliberations of the Conseil exécutif or a cabinet committee (subsection 33(6));
• the agenda of a meeting of the Conseil exécutif, the Conseil du trésor or of a cabinet committee (subsection 33(8)).

Under these provisions, it is therefore questionable whether a Premier's "mandate letters" fall within one of the exceptions of Quebec's Act Respecting Access, given the broad and liberal interpretation of Cabinet secrecy supported by the Supreme Court. 

The author would like to thank Nathan De Tracey, articling student, for his contribution to preparing this legal update.