Ford government appeals to Canada's top court to keep premier's mandate letters secret

The Ontario government has asked Canada's top court to weigh in on the province's nearly four-year fight to keep Premier Doug Ford's mandate letters to his cabinet ministers secret. 

Mandate letters traditionally lay out the marching orders a premier has for each of his or her ministers after taking office — and have been routinely released by governments across the country.

Ford's government, however, has been fighting to keep his mandate letters from the public since shortly after the premier took office in June 2018. 

Despite being ordered to release the records by Ontario's former information and privacy commissioner and having its appeals of that decision dismissed at every level of court so far, the province has decided to use its final option to prevent disclosure: the Supreme Court of Canada.

Crown attorneys with the Ministry of the Attorney General filed their application to the higher court Monday for leave to appeal the Ontario Court of Appeal's decision to dismiss the Ford government's case.

The country's highest court can refuse to hear the case. If it does, then the government will have to release the mandate letters. 

But if the Supreme Court agrees to hear the appeal, there's virtually no chance of the mandate letters being made public before the Ontario election in June. 

Delaying the release of the mandate letters until after the election is the only reason James Turk, director of Ryerson University's Centre for Free Expression, can think of to explain the decision to appeal again. 

"Whatever is in the mandate letters, they don't want it out," said Turk. "That's the only thing I can imagine, because it's a total waste of money – they've lost at every level." 

In the government's application, Crown attorneys argue the Supreme Court should hear the case because it raises issues of public importance like what constitutes cabinet deliberations.

"This will also be the first time this honourable court will consider the constitutional role of the premier in setting cabinet's agenda and address whether the premier's deliberations can reveal the substance of deliberations of cabinet," reads the notice of application.

Ontario's Freedom of Information and Protection of Privacy Act states that any records that "would reveal the substance of deliberations of the executive council or its committee" are exempt from disclosure under what's commonly referred to as the cabinet record exemption.

The province used that exemption to deny access to Ford's 23 mandate letters when CBC News first requested the records in the summer of 2018. 

But in a 2-1 ruling released in January, the Ontario Court of Appeal found that both the privacy commissioner's original decision, and the Divisional Court's review of it, were reasonable in finding that mandate letters do not reveal the substance of cabinet deliberations and so must be disclosed.