B.C. NDP backs Ontario on withholding mandate letters. Yet B.C. has released them for years without a problem
VICTORIA — The Supreme Court of Canada struck a blow for secrecy earlier this month when it backed Ontario Premier Doug Ford’s refusal to release mandate letters setting priorities for his cabinet ministers.
The high court ruled unanimously that if the letters were made public, they could undermine the fundamentals of cabinet confidentiality by prematurely revealing the government agenda.
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“The priorities communicated to ministers by the premier at the outset of governance are the initiation of cabinet’s deliberative process and will be revealing of the substance of cabinet deliberations when compared against subsequent government action.”
Allowing the public to make comparisons between government priorities and what it actually accomplished? Perish the thought.
The B.C. government intervened in the Ontario case, effectively siding with Ford’s refusal to release the letters.
Which is strange, because B.C. premiers have been making public their mandate letters to ministers since 2001, with no demonstrable ill effects for good government or the public interest.
Yet B.C. accepted the facts as presented by Ontario:
“The Ontario government took the position that the mandate letters set out the priorities for the newly formed government and their disclosure would reveal deliberations that took place at that cabinet as well as future meetings,” B.C. acknowledged in its submission to the high court.
B.C. then went on to argue that governments should be protected from having to release any information or documents that would allow “accurate inferences to be drawn about the substance of cabinet deliberations.
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“Cabinet confidentiality is essential to good government and should extend to all documentation of cabinet’s process during its deliberation,” in our province’s fundamentalist view of the issue. “Premature disclosure of these types of documents can create ill-informed or captious public criticism.”
There followed some fanciful notions of the potential consequences for cabinet ministers were the public allowed to glimpse the remotest part of the cabinet agenda.
“Cabinet members who know that their work might one day be subject to intense public scrutiny will be more likely to self-censor their thoughts during a cabinet meeting,” B.C. argued without producing a shred of evidence to support that assertion in the case of mandate letters.
“Similarly, they may hesitate to request advice or recommendations in writing concerning a controversial matter. Cabinet members may hesitate to consider matters from all viewpoints if there is a risk that these considerations will be made public since they can be subject to criticism by persons without full knowledge of the background.”
B.C. then extended this absolutist view to mandate letters for ministers.
“Documents informing ministers of their priorities while in office are useful. Requiring that advice, recommendations, or positions be disclosed without consent of the governing party risks introducing actual or perceived partisan considerations into the decision-making process and may have a negative impact on good governance.”
The key bit there is “without the consent of the governing party.”
The province is saying that the letters can be released if a premier chooses to release them, as happens here in B.C.
But a premier cannot be compelled to release the letters should he or she refuse to do so out of political self-interest or a penchant for secrecy.
The B.C. government closed its submission by professing not to take a firm position on the mandate letters, all the while pleading with the court to recognize “the harm to the public interest that could result from overly broad disclosure of information.”
Instead of indulging Ontario’s theoretical fretting about the dire consequences of releasing the letters, B.C. could have countered by documenting the positive aspects of disclosure under B.C. Liberal premiers Gordon Campbell and Christy Clark and NDP Premiers John Horgan and David Eby.
Two recent examples:
When Premier Eby replaced Mitzi Dean as minister of children and family development last month, his mandate letter to her successor, Grace Lore, included instructions for her to tackle where Dean had fallen down.
“I expect you to prioritize making progress on the following,” wrote Eby. “Engage in deeper consultation with parents and caregivers, First Nations, Indigenous Peoples, communities, experts and practitioners, and other stakeholders with lived experience to build a better system of supports for children and youth with support needs.
Also: “Continue improving B.C.’s in-care system to ensure that it meets the unique needs of every child and youth.”
The premier also appointed Andrew Mercier as the new minister of state for sustainable forestry and innovation.
The mandate letter directed Mercier to tackle the growing sense of alarm over the shortage of usable fibre in the forest industry: “Support local and regional business to business relationships between primary harvesters, secondary users, value-added manufacturers, and First Nations to access residual fibre through negotiated fibre supply agreements.
Both letters told the public what it needed to know about priorities for the new ministers. Both will allow voters to judge their progress before the next election.
Alas, this government or a future one could refuse to release mandate letters, arguing that the highest court in the land has ruled that the public has no business knowing the priorities of its elected ministers.
vpalmer@postmedia.com
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