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Supreme Court rules Premier Doug Ford’s mandate letters to be kept secret

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The Supreme Court of Canada has ruled that the Ontario government does not have to disclose Premier Doug Ford’s mandate letters in a unanimous decision issued Friday.

“The Letters are revealing of the substance of Cabinet deliberations, both on their face and when compared against what government actually does,” wrote Justice Andromache Karakatsanis in the majority decision.

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

But the Ford government went to great lengths to keep the premier’s 2018 letters secret by appealing court orders to disclose the records all the way up to Canada’s top court, which heard the province’s appeal last April. Despite those efforts, a copy of all 23 of Ford’s 2018 mandate letters was reportedly leaked to Global News in September of last year.

CBC Toronto originally filed a freedom of information request for the records in July 2018. The government denied access in full, arguing the letters were exempt from disclosure as cabinet records.

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

​​The interpretation of that exemption was at the heart of the mandate letter case. Several organizations intervened before the top court to argue that if the Ontario government’s interpretation was adopted it would vastly expand the scope of records the government can keep secret from the public in a way that would undermine democracy and impair the public’s ability to hold governments accountable.

The privacy commissioner’s initial decision, and all of the court rulings prior to the latest from the Supreme Court, have supported a narrower interpretation of the boundaries of cabinet secrecy, which differentiates between deliberations and their results.

Supreme court quashes initial decision

But the Supreme Court disagreed. In her majority decision, Justice Karakatsanis found former IPC Commissioner Brian Beamish’s initial decision, which determined the mandate letters were not cabinet records, both unreasonable and wrong.

“Deliberations’ understood purposively can include outcomes or decisions of Cabinet’s deliberative process, topics of deliberation, and priorities identified by the Premier, even if they do not ultimately result in government action,” wrote Karakatsanis.

In addition to laying out the scope of what should be considered “the substance of deliberations,” Karakatsanis wrote about the significance of Cabinet confidentiality as a “constitutional convention.”

The Supreme Court’s ruling comes after years of decisions and appeals. (Sean Kilpatrick/The Canadian Press)

“FIPPA’s Cabinet records exemption was a critical part of the balance the legislature struck between public access to information and necessary spheres of government confidentiality,” she wrote.

“The IPC failed to give meaningful weight to the legal and factual context, including traditions and constitutional conventions concerning Cabinet confidentiality.”

In the end, Karakatsanis found that the letters themselves along with the representations of cabinet office were “clearly sufficient” to find that the records fell within the scope of the cabinet record exemption in FIPPA.

Karakatsanis also ordered CBC to pay costs for the appeal to the Ontario government.

In a statement, a CBC spokesperson said “we are disappointed in today’s decision,” given the broadcaster’s success in the case before the IPC, Divisional Court and the Ontario Court of Appeal.

“Nonetheless, we appreciate the Supreme Court has now provided clarity in the law. CBC News will continue to fight for open access to government-held information,” said CBC spokesperson Chuck Thompson.

“We believe the media’s coverage of the Ontario Greenbelt controversy, which included information the provincial government sought to keep private, illustrates the high public value of transparency and open access to information.”

Decision likely to impact future access to information

Justice Suzanne Côté wrote a concurrent decision for the case, which agreed that the mandate letters are exempt from disclosure but disagreed about the standard of review. Where the majority found that “the same conclusion follows regardless of whether the standard of review is correctness or reasonableness,” Côté found the standard of review should just be “correctness.” Her argument centered around the need for a “single determinate answer” on an issue as significant as the scope of Cabinet privilege.

In a statement, the IPC said, “we appreciate the significance of the Supreme Court’s decision and are examining its broader implications.”

The Ontario government’s submissions in the case had argued the information and privacy commissioner took a “narrow and restrictive approach” interpreting “substance of deliberations,” which amounts to “an unwarranted incursion into the functioning of cabinet.”

CBC Toronto reached out to the province for comment on the Supreme Court decision but has yet to receive a response.

The attorney generals for both Alberta and B.C. also intervened in the case to support Ontario’s broad interpretation of the cabinet record exemption.

The Supreme Court’s decision could have a profound impact on the future of public access to information in Canada that could go far beyond access to the letters themselves.

The Centre for Free Expression, Canadian Journalists for Free Expression, the Canadian Association of Journalists and Aboriginal Peoples Television Network (APTN) intervened in the case as a group. They argued against the government’s interpretation of the legislation, saying it would lead to “absurd results” including keeping secret “any record that revealed that a particular topic had been identified by the premier as a policy priority.”

Opposition parties call for transparency

Ontario NDP Leader Marit Stiles blasted the province’s fight to keep the mandate letters secret at a news conference Friday morning.

“This is not a win for the people of Ontario,” said Stiles. “But what I think is the most disappointing is actually that the government fought so hard to hide this information.”

Despite the ruling allowing the letters to remain secret, Stiles said the decision “doesn’t change the premier’s obligation to be transparent with the public or accountable for his actions.”

In a statement, Ontario Liberal Leader Bonnie Crombie called on Ford’s government to disclose how much the legal fight for the mandate letters cost taxpayers.

Ontario Green Party Leader Mike Schreiner said the public is entitled to transparency and accountability.

“This is a disappointing ruling that sets a poor precedent for democracy in Ontario,” said Schreiner in a statement.

 

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Indian diplomats ‘clearly on notice’ after high commissioner expulsion: Joly

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OTTAWA – Canada isn’t ruling out expelling additional diplomats from India, Foreign Affairs Minister Mélanie Joly suggested Friday following bombshell allegations that Indian diplomats in Toronto, Ottawa and Vancouver were involved in state-sponsored violence targeting Canadian citizens.

Canada expelled the Indian high commissioner and five other diplomats on Monday and when asked at a news conference in Montreal Friday if any more expulsions would follow Joly did not say no.

“They’re clearly on notice,” she said.

The minister said that Canada will not tolerate any foreign diplomats that put the lives of Canadians at risk.

A year ago Prime Minister Justin Trudeau said Canada had clear evidence that Indian agents were connected to the murder of Sikh leader Hardeep Singh Nijjar in British Columbia in June 2023. The allegations suggest India is trying to snuff out a movement to create an independent Sikh state in India known as Khalistan.

On Oct. 14, RCMP Commissioner Mike Duheme rocked the diplomatic relationship further, saying the national police force had launched a special investigative unit last February to investigate multiple cases of extortion, coercion and violence, including murder, linked to agents of the Indian government.

In more than a dozen cases, Canadian citizens were warned about threats to their personal safety and Duheme said the national police force was speaking out to try and disrupt what it deemed a serious threat to public safety.

The six diplomats expelled are persons of interest in the cases, with allegations that diplomats used their position to collect information on Canadians in the pro-Khalistan movement and then pass that on to criminal gangs who targeted the individuals directly.

India has denied the allegations and expelled six Canadian diplomats from New Delhi in return.

Joly said Friday the allegations were extraordinary in Canada.

“That level of transnational repression cannot happen on Canadian soil,” she said. “We’ve seen it elsewhere in Europe, Russia has done that in Germany and the U.K., but we needed to stand firm on this issue.”

The allegations will be studied in more detail by the House of Commons national security committee following a vote by the committee Friday. Joly and Duheme will both be asked to appear, as will Public Safety Minister Dominic LeBlanc

NDP MP Alistair MacGregor, who put forward the motion to launch the study, said the fact the RCMP came out with such “explosive revelations” underscores how serious the situation is.

“The RCMP made a point that they were doing this because some individuals in Canada had their lives directly in danger and the threat reached such a level they felt compelled to ignore the traditional way of going through the judicial process and make these accusations public,” he said.

Canada’s allegations were followed Thursday by charges announced by the U.S. Justice Department against an Indian government employee who is accused in an alleged foiled plot to kill a Sikh separatist leader living in New York City.

U.S. authorities say Vikash Yadav directed the New York plot from India. He faces murder-for-hire charges in a planned killing that prosecutors have previously said was meant to precede a string of other politically motivated murders in the United States and Canada.

The Indian government didn’t immediately provide comment on the U.S. charge.

American-Canadian lawyer Gurpatwant Singh Pannun, a lawyer and dual Canadian and U.S. citizen, said in a statement that he was the target of the alleged murder plot in New York. He said he was targeted because he is a lawyer for Sikhs for Justice and was helping to organize votes in a non-binding referendum on the creation of an independent Sikh state.

Nijjar helped organize a similar referendum in B.C. prior to his death.

The House committee Friday also voted to call Brampton Mayor Patrick Brown to testify, as well as other candidates from the 2022 Conservative leadership contest. A report released in June by the National Security and Intelligence Committee of Parliamentarians (NSICOP) contains a redacted paragraph that details alleged Indian interference in a Conservative leadership contest. A specific year is not mentioned.

The Conservatives have said they have been given no information about any such interference.

The committee is also now considering a second NDP motion calling for all party leaders to apply for a top-secret security clearance within 30 days, along with a Conservative amendment to demand Prime Minister Justin Trudeau release the names of parliamentarians listed in top-secret documents as being engaged in or at-risk of foreign interference.

At the foreign interference inquiry this week Trudeau said Conservative Leader Pierre Poilievre refused to get the clearance that would allow him to access the names of Conservatives from those documents, while Poilievre accused Trudeau of lying and demanded he make all the names public.

Trudeau acknowledged the documents include the names of members of other parties, including the Liberals, but said if Poilievre doesn’t get the clearance that is needed to know who is at risk he can’t take any steps to prevent or limit the impact.

Manitoba Conservative MP Raquel Dancho told the committee that Poilievre getting a briefing would be a “gag order” against criticizing the government on foreign interference.

“We can put this to bed, it’s rapidly devolving into some McCarthy witch-hunt as a result of the prime minister’s actions and we can clear this up today by releasing the names,” Dancho said.

This report by The Canadian Press was first published Oct. 18, 2024.



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B.C. faces a rain-soaked election day after a campaign drenched in negativity

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VANCOUVER – British Columbians go to the polls on Saturday after a too-close-to-call campaign that saw David Eby’s New Democrats and John Rustad’s B.C. Conservatives tangle over housing, health care and the overdose crisis — as well as plastic straws and a billionaire’s billboards.

Forecasters say election day will be soaked in several parts of the province by heavy rain from an atmospheric river system.

But the campaign has already been drenched in negativity, with Eby and Rustad each devoted to telling British Columbians why they shouldn’t vote for the other.

The NDP’s election platform mentions Rustad more than 50 times, compared to only 29 times for Eby, while the B.C. Conservative platform names Eby 50 times, and Rustad only 11 times.

“I hope we never see another election like this,” Eby said this week in Nanaimo, describing the tone of the campaign where he felt compelled to tell voters about controversial public statements made by Rustad and some of his candidates.

“We don’t call people who are gay ‘groomers,'” he said. “We don’t tell Indigenous people that what they experienced in residential schools wasn’t real. We don’t propose that health-care professionals be put in front of an international tribunal similar to the trial of the Nazis called Nuremberg 2.0.”

Rustad, who campaigned in Nanaimo on the same day Eby visited the Vancouver Island city, said the NDP leader has consistently attempted to shift focus away from what he says are the real issues facing the province — mismanagement of the economy, the crumbling health-care system and the ongoing drug overdose crisis that has resulted in more than 15,000 deaths since 2016.

“I don’t know why, I guess as premier he thinks it’s OK to be lying to the people of B.C.,” said Rustad. “The premier of a province like B.C. should be able to be out, being straight up with people and telling them the truth as opposed to lies.”

Regardless of the outcome, the election will go down as a sea change for B.C. politics, with the Conservatives poised to either form government or become the official opposition, after the implosion of the BC United party under Kevin Falcon, who halted his party’s campaign to support Rustad and avoid centre-right vote splitting.

Polls have put the NDP and the B.C. Conservatives locked in a close battle. It’s a remarkable turnaround for the Conservatives, who won less than two per cent of the vote in the last provincial election.

Eby and Rustad spent Friday making last-ditch pitches for support in vote-rich Metro Vancouver.

Eby started in Coquitlam, while B.C. Conservative Leader John Rustad was scheduled to be in North Vancouver.

“We have left nothing on the table,” said Eby, adding every vote will count Saturday. “I have really no regrets about the campaign.”

On Friday, the Conservatives said that if elected they would launch “a full public inquiry” into the use of taxpayer money to buy drugs on the dark web.

That is a reference to a so-called “compassion club” that was operated by the Vancouver-based Drug User Liberation Front to buy drugs including methamphetamine, cocaine and heroin, test it for safety and then sell it to its members.

The club was ultimately shut down and the group’s founders arrested and charged with trafficking.

“This inquiry will seek to uncover who knew what, when they knew it, and what actions were or weren’t taken by the New Democrats, including Premier David Eby,” the party said in a statement.

Rustad was not available to reporters on Friday, but he was holding photo opportunities in Metro Vancouver.

Green Leader Sonia Furstenau was in Victoria, where she is looking to capture a seat in the NDP stronghold of Victoria-Beacon Hill. She has acknowledged the Greens won’t win the overall election, but is hoping to retain a presence in the legislature where the party currently has two members.

The campaign’s only televised debate saw Furstenau tell voters that Eby and Rustad were more closely aligned than people may believe on issues including support for the fossil fuel industry and placing people with mental health and addiction issues into involuntary care.

The month-long campaign has featured regular controversies for the Conservatives surrounding past comments by Rustad and his candidates.

Rustad dropped several potential candidates before the start of the official campaigning period over extreme views posted on social media.

But during the campaign he continued to support Surrey-South candidate Brent Chapman, who called Palestinian children “inbred” and “time bombs” in a 2015 Facebook post.

Eby mentioned Chapman during visits to two mosques in Surrey.

“John Rustad and the B.C. Conservatives are standing with that candidate,” he said at the Guilford Islamic Centre. “They should have got rid of him.”

Eby said the NDP are running two Muslim candidates in the election, including candidate Haroon Ghaffar in Surrey-South against Chapman.

“It’s important to have diverse candidates in the legislature,” said Eby, adding B.C. has yet to elect a Muslim.

Eby faced tough questions from people at the mosque about teaching sex education at schools and the rise of Islamophobia.

Rustad also stood by North Coast-Haida Gwaii candidate Chris Sankey, who suggested vaccines caused AIDS by posting about “Vaccine Acquired Immunodeficiency Syndrome” during the COVID-19 pandemic.

Then there was Vancouver billionaire Chip Wilson, co-founder of the Lululemon athletic clothing line.

Wilson injected himself into the campaign with a series of anti-NDP billboards outside his waterfront Vancouver home, located in Eby’s Vancouver-Point Grey riding.

Eby and the NDP embraced the moment, saying Eby was on the side of ordinary people in B.C. struggling to make ends meet and not the owner of a home assessed at more than $81 million.

Rustad said he supported entrepreneurs like Wilson, but they couldn’t expect a break on their property taxes.

Rustad’s campaign promise to reverse a ban on plastic straws prompted Eby to begrudgingly agree that “paper straws suck,” but he suggested the B.C. Conservative leader was trying to stir up controversy by diverting attention from major issues facing the province.

Election day coincides with an atmospheric river system that is dumping heavy rain across much of the province.

Furstenau used the weather event to highlight her party’s climate promises, saying the Greens are the only party that offers a serious response to the climate crisis.

“It’s very interesting the timing of an atmospheric river arriving right on the moment of this election campaign, an election campaign where we have one party led by a climate denier and another party led by a climate delayer,” she said.

This report by The Canadian Press was first published Oct. 18, 2024.



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AFN votes on way forward after $47.8 billion child welfare reform deal is defeated

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OTTAWA – The executive team from the Assembly of First Nations will meet in the coming days to discuss how to proceed with new negotiations for a child welfare reform deal after chiefs voted against the government’s proposed $47.8 billion agreement at a meeting in Calgary Thursday.

AFN National Chief Cindy Woodhouse Nepinak, who had helped negotiate the deal and pushed for it to be approved, was blunt in her assessment of the outcome in her closing remarks to the special chiefs assembly Friday.

“We also recognize the success of the campaign that defeated this resolution. You spoke with passion, and you convinced the majority to vote against this $47.8-billion national agreement,” she said.

“There is no getting around the fact that this agreement was too much of a threat to the status quo, to the industry that has been built on taking First Nations children from their families.”

Cindy Blackstock, executive director of the First Nations Child and Family Caring Society which helped launch a discrimination case against Canada that led to the deal, said “that’s an unfortunate characterization of the chiefs taking a look at the agreement with their own experts and own legal staff and making an informed decision that’s best for them.”

“I respect the National Chief, and I look forward to kind of working with her and everyone to make sure that we get this across the finish line,” Blackstock said.

The defeated deal was struck between Canada, the Chiefs of Ontario, Nishnawbe Aski Nation and the Assembly of First Nations in July after a nearly two-decades-long legal fight over the federal government’s underfunding of on-reserve child welfare services.

The Canadian Human Rights Tribunal said that was discriminatory because it meant kids living on reserve were given fewer services than those living off reserve.

The tribunal tasked Canada with reaching an agreement with First Nations to reform the system, and also with compensating children who were torn from their families and put in foster care.

The $47.8 billion agreement was to cover 10 years of funding for First Nations to take control over their own child welfare services from the federal government, create a body to deal with complaints and set aside money for prevention, among others.

Before the deal was announced in July, three members of the AFN’s executive team wrote letters to the national chief saying they feared the deal was being negotiated in secret, and asked for a change in course. They also said the AFN was attempting to sideline the First Nations Child and Family Caring Society from negotiations.

Those concerns largely remained when the deal was announced in a closed-door meeting at the AFN’s last gathering, with chiefs questioning how the reforms will work on the ground, and service providers saying their funding levels will be significantly cut which would impact their ability to do their work effectively.

Blackstock found support from 267 out of 414 chiefs who voted against a resolution calling for the deal to be approved.

Squamish Nation chairperson Khelsilem introduced a resolution Friday calling for a new negotiation mandate from chiefs.

“This is a lesson for the Assembly of First Nations, for the staff and legal, for the advisers, for the portfolio holder who has worked on this deal,” he said.

“The way we got here was not the way we should have done this. There’s a better way forward.”

His resolution, and another one from child welfare advocate and proxy chief for Skawahlook First Nation, Judy Wilson, called for the creation of a children’s chiefs’ commission comprised of leadership from all regions in the country to negotiate a new deal and provide oversight, along with a new legal team.

It also calls for chiefs to be given at least 90 days to review an agreement before voting on it, with the document to be made available in both official languages.

Khelsilem said the new negotiation mandate was developed with about 50 leaders from across the country, and hopes it will set a positive path forward in the best interest of kids in care after a fairly testy special chiefs assembly. He also said the new mandate will address “flaws” highlighted by chiefs across the country, and will ensure there is more transparency.

“We didn’t have to be in a situation where we had to vote down a flawed agreement and then create a direction to be able to get this back on track,” he said to chiefs.

“We didn’t have to be here if the process that was used to create the (final settlement agreement) was a meaningful process that meaningfully respected and consulted First Nations, that allowed for meaningful dialogue to improve that agreement.”

In a statement, a spokesperson for the minister of Indigenous Services said Canada worked closely with First Nations on this deal, and as it was being amended.

“The agreement that chiefs in assembly rejected yesterday is the final product of those close negotiations,” Jennifer Kozelj said.

“Canada remains steadfast in its commitment to reform the First Nations child and family services program so that children grow up knowing who they are and where they belong.”

Blackstock said that Indigenous Services Minister Patty Hajdu or Prime Minister Justin Trudeau ought to have been at the gathering in Calgary if they stood by the agreement.

In a statement Friday, the Assembly of First Nations Quebec-Labrador said they’re grateful for the work that has been done to date, but that chiefs need to work together to amend the deal so it respects diversity of communities and eliminates systemic discrimination.

“As chiefs, we have a sacred responsibility to protect our children and families for the next seven generations,” said interim regional chief Lance Haymond.

Blackstock says that even though the deal was defeated, it doesn’t mean they’re starting from the bottom.

“We have so much to build on, including the draft final settlement agreement,” she said. “This is a reset to ensure that First Nations kids all succeed.”

This report by The Canadian Press was first published Oct. 18, 2024.



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