Publication of Mandate Letters in Ontario | The sooner the better!

The Ontario Court of Appeal ruled on January 28 that the Progressive Conservative government of Doug Ford violated the Freedom of Information and Protection of Privacy Act since 2018 by refusing to make his ministerial mandate letters public. About a month has passed since this decision and there is only another month left for the government to publish the missives or decide to appeal the case to the Supreme Court of Canada.

After his election, Doug Ford proclaimed loud and clear that he would bring accountability, transparency and integrity to taxpayers in Ontario. However, by not disclosing the mandate letters, he is reneging on this promise. Although the Ford government wishes to preserve the confidentiality of cabinet deliberations that are essential to good governance, it appears to be unnecessarily delaying the inevitable. Indeed, the letters will be published one day, and the sooner the better!

A new standard of transparency and accountability

Mandate letters, written by the prime minister, broadly dictate what ministers will achieve in their office and how to achieve them. They generally reflect the election promises made by the party in government. These roadmaps are typically sent to the ministers concerned after the Speech from the Throne marking the start of a new parliamentary session.

For a long time, mandate letters did not exist in Westminster-style parliamentary systems like in Canada. When they recently appeared in the country, they were not released publicly but could be obtained in some cases via a freedom of information request. Alberta Premier Jim Prentice and then Ford’s predecessor in Ontario, Kathleen Wynne, were the first to automatically make them public in 2014. Prime Minister Justin Trudeau and other provincial premiers decided to follow their lead.

By disclosing the missives addressed to ministers, we agree on the right of citizens to be informed of government actions, a right already recognized under Canadian laws on access to information.

The new standard of governance thus created makes it possible to ensure a high level of transparency vital for democracy. The public now has the information needed to participate meaningfully in the political process.

Furthermore, the disclosure of mandate letters has the effect of making politicians and public servants more accountable. They are thus more motivated to stay the course, knowing that they will be judged harshly if they do not meet the expectations set out by the Prime Minister. Opposition parties, journalists and stakeholders are also better equipped to call to order a government that does not respect its commitments.

Why keep the secret?

It’s surprising that the Ford government insists on keeping the mandate letters secret, because it’s a safe bet that their content is in fact mundane and obvious. According to him, however, his mandate letters were not written for public consumption like letters from other governments.

There are fears that complying with the court’s ruling would have a chilling effect on the frank discussions held at cabinet meetings that are essential to the proper functioning of government. The refusal to publish would then be explained by a desire to maintain the confidentiality of the cabinet’s deliberations.

The government maintains that the Freedom of Information and Protection of Privacy Act does not require him to disclose the mandate letters since they are exempted under the law as cabinet documents. Specifically, the law exempts any document revealing the subject matter of cabinet deliberations from any access to information request.

But as Lorne Sossin, one of the appellate judges who heard the case, suggests, the mandate letters represent the culmination of the cabinet’s deliberative process and do not outline that process or the options discarded along the way.

In general, governments prefer to act of their own volition rather than being constrained by judicial decisions. More than signaling that they have suffered a defeat, the judgments of the courts create precedents which limit their field of future action.

In the meantime, the legal battle which has already lasted three and a half years has cost thousands of dollars at the expense of the taxpayer, who ends up losing.

Whether or not one is convinced by its arguments, the Ford government is only delaying the inevitable given the legal consensus that has emerged on the issue! After an order from the Information and Privacy Commissioner of Ontario, a unanimous judgment from the trial court and a majority judgment from the Court of Appeal in favor of releasing the mandate letters, it would be surprising if the Supreme Court supported the government in this case.

Despite this, the order given by the executive is to keep the missives in-house as long as possible. This gives the impression that the government has something to hide and damages its image. However, it would have been politically advantageous to release the letters a long time ago to avoid potential embarrassment just before the provincial election scheduled for June 2.