Order in the court!
A recent court ruling in a freedom-of-information (FOI) case was a sweet win for transparency in Ontario. But the ruling also highlighted a loophole that the federal Liberals slipped into the national law almost three years ago. That one was a win for secrecy.
On July 11, 2018, Ontario Premier Doug Ford handed out 23 so-called mandate letters to new ministers gathered around his cabinet table. Each letter detailed Ford’s expectations, a kind of jobs list. Previous Liberal premiers had published mandate letters but Ford reverted to secrecy, keeping them confidential.
CBC reporter Nicole Brockbank asked for the letters under FOI. You can’t have them, the province said. They’re cabinet confidences and exempt from disclosure. Brockbank complained to Ontario’s information commissioner. Brian Beamish sided with Brockbank in 2019, and ordered the Ford government to release them. The province challenged that order in Divisional Court, and lost. They went to the Court of Appeal, and on Jan. 26 lost again. The next stop is likely the Supreme Court of Canada.
The courts agreed with Beamish that these mandate letters were not true cabinet documents, despite being distributed at a cabinet meeting. They weren’t up for discussion that day, weren’t even an agenda item. The law is clear: no deliberations, no protection.
Importantly, the Ontario courts examined Beamish’s order rather than the Ford government’s decision to withhold. Did Beamish correctly and reasonably assess all evidence presented, in accordance with the law, before issuing his order? Or did he err? The courts notably did not press a reset button to start a fresh examination of the government’s evidence and arguments. Ontario’s law works that way to ensure that orders actually mean something. They can’t be discarded just because a minister chooses to go to court.
Order-making power is a hallmark of modern FOI laws around the world. Commissioners exercise this authority in at least four other provinces (BC, Alta, Que, PEI). Nova Scotia’s new premier is promising it for his provincial commissioner.
In the 2015 election campaign, the Trudeau Liberals committed to giving “binding order” power to Canada’s commissioner, who since 1983 had relied only on morale suasion and occasional court challenges to try to police the system.
Almost four years later, the Liberals did give her this power, in Bill C-58, amending the Access to Information Act. But there was a catch. Her orders are not certified as Federal Court orders. They therefore lack enforcement measures, such as contempt-of-court citations for failure to comply.
Institutions that balk at complying with an order can go to Federal Court for a hearing before a judge. But instead of examining the commissioner’s order, the court starts a fresh review of the case, a de novo review in the legalese of the Act. Institutions are then free to advance new evidence and arguments that they did not submit for the commissioner’s review. Former commissioner Suzanne Legault warned against this retrogade procedure but was ignored.
So the Liberals’ “binding order” power turned out to be not so binding after all. To my knowledge, there has been no court challenge of this watered-down authority to date. Bill C-58 has nevertheless shown, in this and other ways, government’s irresistible attraction to secrecy even as it crows about transparency.
Feb. 2, 2022
Update: On March 28, 2022, the Ford government sought leave to appeal the ruling on mandate letters to the Supreme Court of Canada.
