More Darkness in Ontario’s Democracy

By Sandford Borins

In Canada, after an election first ministers write mandate letters to their cabinet colleagues, laying out deliverables their departments should achieve. Some governments make them public (Trudeau, McGuinty and Wynne in Ontario), but others don’t (Harper, Ford). A newly-elected government traditionally outlines its program in its platform and speech from the throne; mandate letters may be more specific. Even if they are not made public, they can provide direction to the bureaucracy. If made public, they can be used to hold the government accountable.

A Reassertion of Orthodoxy

The CBC made a freedom-of-information request for the Ford Government’s secret mandate letters after it was elected in 2018. When the government refused, the CBC appealed to the Information and Privacy Commissioner of Ontario and won. The government then appealed all the way to the Supreme Court of Canada, which released its decision on February 2. The Justices sided with the government, 7-0.

The justices looked at the practice of publishing mandate letters in terms of the convention of secrecy in cabinet decision-making. The justices see the mandate letters as “mark[ing] the initiation of a fluid process of policy formulation within Cabinet” and consider them as “agenda-setting, which occurs at an early stage [and] is a crucial part of the decision-making process.” As such, they are covered by the convention of confidentiality of Cabinet decision-making and exempt from freedom-of-information legislation.

The decision concludes that “disclosure of the Premier’s initial priorities, when compared against later announcements of government policy and what government, actually accomplished would reveal the substance of what happened during Cabinet’s deliberative process.” A practice that was intended to enhance public accountability of government was rejected by the Supreme Court for precisely that reason, namely that it would embarrass the government if it doesn’t live up to its intentions.

The Supreme Court has created a precedent with national implications. Will the federal government and other provincial governments that previously published mandates cease doing so? Will the decision increase government secrecy, for example by being applied more widely to communications among ministers, or by expanding the definition of inputs to cabinet decisions that can be deemed secret?

The Justice who wrote the opinion that I quoted is Andromache Karakatsanis. Before her first appointment as a judge in 2002, she was an Ontario public servant who ultimately held the position of Cabinet Secretary from July 2000 to November 2002. This was during Mike Harris’s second term as premier. Harris was dogged by the scandal of tainted water causing several deaths in the town of Walkerton; a public inquiry concluded that his government’s privatization of water testing bore some responsibility for the tragedy. Harris resigned in April 2002 before the end of his mandate. I can’t help but wonder whether, and if so how, Karakatsanis’ lived experience as Cabinet Secretary when a government’s popularity was plummeting affected her thinking.

The Secretive Populist

The Ford Government has been in office for almost six years and its modus operandi is now clear. Though Ford claims to be a populist who listens to “the people” and consults widely, he also has fixed views, particularly regarding governance and policy in the Greater Toronto Area (GTA). The Ford Government is also secretive in its decision making. In addition to refusing to publish mandate letters, it doesn’t even publish the membership of cabinet committees. Public servants tell me that the mandate letters aren’t made available to them. Many key decisions, such as the granting of exemptions to land development restrictions in the Greenbelt, are made by politicians or politician aides, with no input from the public service. When a decision meets with fierce public opposition (for example land development in the Greenbelt or banning a strike by education workers), Ford backtracks and presents his backtracking as evidence of his populist bona fides. Finally, the Ford Government attempts to persuade the public of the correctness of its policies and the magnitude of its achievements with major publicly funded advertising campaigns, particularly in the run-up to the presentation of its budget, as is the case just now.

To return to the 2018 mandate letters, we will never know now, but we can wonder what it was the Ford Government didn’t want to make public. It came to office with a clear set of winners and losers in mind, and perhaps the mandate letters reflected this. (I will be provocative in my language when the government would have been discreet.) Perhaps the letter to the Ministers of Housing and Environment said that the Greenbelt was a gimmick of the McGuinty and Wynne Governments, so it was fine to chip away at it by converting parts of it to housing. Or the letter to the Minister of Tourism, Culture, and Sport stated that developing Ontario Place was a priority and the current Ontario Science Centre should be killed by underfunding. Or the letter to the Minister of Energy opined that solar and wind energy were elitist baubles meriting zero funding. Or the letter to the Ministry of Colleges and Universities expressed the view that these hotbeds of wokeism should have their funding flatlined for the foreseeable future.

As these intended policies emerged in actual decisions, they have been met with firestorms of protest and sometimes reversed. Had the letters been made public at some point, even now if the Supreme Court had sided with the CBC, they might have stoked the protests. Had the CBC won in the Supreme Court, it would have asked for the 2022 mandate letters, and they too would likely have provided ammunition for the Ford Government’s critics. And the Ford Government would have stopped writing mandate letters.

But the Ford Government’s clear-cut victory in the Supreme Court will reinforce its cult of secrecy that often precludes consultation to gauge the public mood concerning important issues. The result is often a cycle of ideological, or even capricious, decisions that prove unpopular and lead to subsequent backtracking. Whatever its intention, the Supreme Court’s decision enables the Ford Government to further darken Ontario’s democracy.

Posted with permission from Sandford Borins