Despite a legal intervention from FIPA and others, it is a dark day for accountability in Canada. The Supreme Court of Canada (SCC) has made its ruling in Attorney General for Ontario v. Information and Privacy Commissioner of Ontario, et al. File No. 40078.
Writing for the majority, Justice Karakatsanis ruled the mandate letters were protected from disclosure under section 12(1) of the Ontario Freedom of Information and Protection of Privacy Act. The court also awarded that costs to the appellant are payable by the CBC.
In approaching assertions of Cabinet confidentiality, administrative decision makers and reviewing courts must be attentive to the vital importance of public access to government-held information but also to Cabinet secrecy’s core purpose of enabling effective government, and its underlying rationale of efficiency, candour, and solidarity.”
FAQ: What’s a mandate letter and why is it important?
Political parties campaign on platforms and promises, and these vary widely in their scope and depth. When a party forms government, there are a few mechanisms that are used to formally state their plans and priorities – Speeches from the Throne, Budgets, and Mandate Letters to Ministers. The latter have traditionally been made public.
Mandate letters serve an important transparency and accountability function: They establish priorities and policy objectives, and ministers and governments can be held accountable for what is included, what is not included, and how these plans are enacted. At the most basic level, the media, the Opposition, and members of the public have an opportunity to say, “Your mandate letter prioritizes X, so can you explain why you are doing Y?”
The SCC ruling has empowered wannabe autocrats in any provincial Premier’s office. We will be dealing with this ruling and its fallout for decades to come.
It brings us closer to a scenario where the unilateral decision of a Premier’s office about what is or is not Cabinet confidence enables them to refuse the release of information and for the public to be left with little recourse.
We were particularly surprised and disappointed to see an alliance between the BC NDP with Alberta’s and Ontario’s Conservatives. All of these governments campaigned on promises of greater transparency and accountability. Given the opportunity to make good on these promises, they have instead worked to enhance their ability to keep information secret.
Our view remains straightforward: Ministerial mandate letters need to be available to the public and preferably by default. Without that guarantee of transparency, the public is not able to trust that ministers and governments are advancing goals in the public interest rather than some secret agenda.
Concerns and Consequences
Less information for the public.
This is the latest example of another exclusion and exemption leading to greater government secrecy.
This case can be cited to prevent the release of mandates and applied unilaterally. Without clarity between “deliberation and decision”, the public is left powerless.
It is a step backwards for provincial transparency laws which, through this decision, move closer to the sweeping Cabinet privilege that has long been associated with the federal Access to Information Act.
A chilling effect.
For the Court to award “costs to the appellant payable by the CBC” sends a disconcerting message to the media of the country. Media are unlikely to be able to afford to take on provincial governments if made to bear the full cost to defend the public’s right to know.
More Delays.
For the Court to indicate that Commissioners’ officers need to consider “constitutional convention” in their reviews and complaints adds additional legal complexity and complication.
Mandate letters relegated to the status of propaganda.
The release of a mandate letter becomes the sole discretion of the Premier’s office without any ability to verify its relevance or accuracy.
Conspiracy to fill the information vacuum.
With less official and verified information available and secret mandates enabled, mis-, dis-, and mal-information can fill the void creating fertile ground for conspiracy theories.
Next Steps
Our law reform efforts will continue to focus on rebalancing Freedom of Information laws in the public interest and away from government secrecy.
Specific to this case, we will be seeking greater clarity on decisions versus deliberations of Cabinet and ensuring public interest paramountcy is in legislation and meaningfully acted upon.
With the prospect of secret Cabinet mandates contradicting public communication, we will be considering how to use access requests to verify the accuracy of any released material from Government.
FIPA wants to extend our deepest gratitude and was pleased to work with Sean Hern K.C. to intervene and fight to keep the public interest paramount.
FIPA along with the Canadian Civil Liberties Association, and a group comprised of the Centre for Free Expression, Canadian Journalists for Free Expression, Canadian Association of Journalists and Aboriginal People’s Television Network sought to intervene in support of the Information Privacy Commission of Ontario and Canadian Broadcast Corporation. You can read all of the factums here:
