The influence of conventions in the SCC's decision re: Ford's ministerial mandate letters

It is not a constitutional case, in the sense of constitutional law, but the unwritten constitution had a tremendous impact on the SCC’s recent decision overturning lower court decisions requiring the release of Premier Doug Ford’s ministerial mandate letters under the provincial freedom of information (FOI) law.

The Information and Privacy Commissioner of Ontario (IPC) found that mandate letters were not exempt from FOI requests under section 12(1) of the Act, which exempts a number of matters including the “substance of deliberations” of Cabinet or its committees. This decision was upheld by an Ontario Divisional Court decision and a majority of the Court of Appeal.

This is a decision on which reasonable people might go either way, at least in the sense of interpreting a clause as ambiguous as “substance of deliberations”. On the one hand, mandate letters might be seen as a core product of the executive and thus exempt in the very broadest of senses by virtue of cabinet confidentiality. On the other hand, mandate letters aren’t really a product of any “deliberation” by cabinet as a body; they are instead a product of the Premier’s Office (or PMO at the federal level). There was thus a strong argument to be made - as the lower courts here found - that the IPC’s understanding of section 12(1) was perfectly reasonable.

And so while I was not surprised by the outcome the Supreme Court arrived at, I am more than a bit uncertain about its reasoning, especially with respect to the somewhat casual way the Court relies on constitutional convention to justify its decision. By “casual” here I do not mean that the Court was not thoughtful or thorough about its elaboration of conventions. Instead I mean that I’m not sure that conventions and political practice are either helpful or appropriate for determining the scope of a statutory provision in this particular context. I say this because constitutional conventions are literally defined by their status as “binding political rules of behaviour not enforced by courts.” They are part of the “political constitution”, not the legal constitution, precisely because they are not law.

Moreover, as I will discuss near the end of this post, the recent political practice of releasing mandate letters arguably exposes the dubious nature of some of the Court’s concerns about the impact the IPC order would have on cabinet confidentiality.

There is a very fine line between the need for courts to recognize “how the system works” in practice - the contextual detail required to ensure its legal decisions are coherent with existing political practice - versus recognizing or indirectly ‘enforcing’ constitutional conventions in a way that basically turns them into law. There’s also a secondary problem: courts delving into the details of political practice may ‘get it wrong’.

It’s worth noting that neither the Divisional Court nor the majority at the Court of Appeal even referred to conventions. By contrast, conventions dominate Justice Karakatsanis’s reasons.

Right from the very first paragraph Karakatsanis describes the case not as a matter of statutory interpretation or of assessing the reasonableness of the IPC’s decision but as about “the balance between … two foundational principles” (the public’s need to know and the confidentiality the executive requires to govern effectively). It’s a lot easier to dive into a broader discussion of underlying principles and convention when you frame a legal challenge as not about the scope of specific statutory provision but instead in the more grandiose terms of a contest between transparency and executive function.

Consider, by contrast, the Ontario Divisional Court decision which describes the case as follows: “This case involves a straightforward issue of statutory interpretation of one specific provincial statute and the scope and application of the s. 12(1) protection against disclosure to specific documents. … There is no issue of the ‘rule of law’ or of constitutional law engaged in this case which removes the analysis from the presumed standard of reasonableness.” (para. 16).

Not only does Karakatsanis focus an incredible amount of attention on the nature of the convention at stake but her framing risks conflating law with convention. At para. 7: “[The IPC’s] reasons were intelligible and transparent. But he did not engage meaningfully with the legal and factual context against which s. 12(1) operates - in particular, constitutional conventions and traditions surrounding Cabinet confidentiality and Cabinet’s decision-making process, including the role of the Premier within that process.”

This leads her to the contestable conclusion that “the Premier’s deliberations cannot be artificially segmented from those of Cabinet. … the Letters reflect the views of the Premier on the importance of certain policy priorities, and mark the initiation of a fluid process of policy formulation within Cabinet” (para. 8). By contrast, the IPC described the purpose of confidentiality as “to promote the free and frank discussion among Cabinet members of issues coming before them for decisions, without concern for the chilling effect that might result from disclosure of their statements or the material on which they are deliberating,” but his reading of section 12(1) excluded mere “subjects” or “topics” of deliberation, excepting where they “would permit accurate inferences to be drawn as to actual Cabinet deliberations at a specific Cabinet meeting” (para. 12).

Karakatsanis delves into a discussion of aspects of cabinet confidentiality and cabinet secrecy (paras. 27-31) and concludes that the IPC failed to engage with one of the key underlying rationales for confidentiality: “the efficacy of the Cabinet decision-making process” and the “efficiency of the collective decision making” (para. 32). (Notably, in her concurring judgment, Justice Côté disagrees with this assessment, all while agreeing with the majority as to the outcome).

But the underlying question of whether mandate letters themselves merely initiate a process of (efficient or otherwise) cabinet decision-making (and are thus covered by s.12(1)) or rather they are the end result of a Premier’s personal decision-making is ultimately what is at stake.

Karakatsanis, by adopting the former view, transforms the issue into one of the the government’s entitlement to decide when to disclose policy decisions, again referring to this “as a matter of convention” (para. 36). Again, this assumes that publishing mandate letters is akin to “[p]ublicizing Cabinet’s decision-making process before the formulation and announcement of a final decision”. She even goes so far as to invoke the importance of the government’s “communications strategy” in this process.

One might object at this juncture, to point out that if the Court felt the need to get so far into the weeds of political practice that there are plenty of arguments on the other side. For example, in practice, the first minister dominates Cabinet. It is the Premier’s Office that sets the policy agenda, it is the Premier that fires and appoints ministers, and there is just as much an argument to be made that in this light ministerial mandate letters are not a product of Cabinet itself but of the Premier’s Office.

Karakatsanis explicitly acknowledges this relationship but instead of seeing it as promoting a distinction between the Premier and Cabinet sees it as intertwining the roles entirely (para. 46). She notes, for example, that ministers may seek to dissuade the Premier from pursuing particular policies, noting that mandate letters themselves are thus effectively subject to change. This isn’t quite true - policies might subsequently change, but the mandate letters themselves are simply the Premier’s initial marching orders to his individual ministers. Besides, all of this belies the question of whether the letters themselves are the product or even precursor of a distinct decision-making process. Karakatsanis writes that “There is no basis in convention or past precedent to separate the Premier’s role in this process from the rest of Cabinet. Disclosure of the Premier’s initial priorities, when compared against the later announcements of government policy and what government actually accomplished, would reveal the substance of what happened during Cabinet’s deliberative process.” (para. 53).

Within respect, this is an idealistic and text-book view of modern government decision-making. While it is undoubtedly true that decisions to reverse course on policy initiatives can emerge from cabinet deliberations, in many cases they can just as easily emerge from the Premier’s office (precisely why the distinction is not artificial!). It is all well and good to cite academic work (and it’s nice to see so many political scientists cited in an SCC decision!) explaining how cabinet “formulates and carries out all executive policies”, but if we’re going to determine the scope of a statutory provision based almost entirely on our understanding of political practice, it would do us well to have a grounded understanding of that practice. The Premier’s office is arguably more important to policy decisions than cabinet, by virtue of the control the Premier himself has over cabinet. Indeed, this is precisely why the IPC was not unreasonable to view mandate letters as documents that do not flow inherently from, or as products of, cabinet deliberations.

In other words, we might guess as to whether cabinet deliberations resulted in a change of course on policy, but we wouldn’t know they did, because sometimes staffers in the PMO/Premiers offices bring their bosses a public opinion poll and they say “okay, we’re not doing that anymore, don’t worry, I’ll tell the cabinet next week.” In my respectful opinion it is simply not true that mandate letters would “reveal the substance of what happened” at Cabinet.

Perhaps more importantly, pretty much all of this analysis by Karakatsanis could have flowed from a more direct assessment of the statutory provision and its express terms (“substance of deliberations”). The Court could have reached its conclusion by determining that mandate letters are part of the substance of cabinet deliberations. I might have still been skeptical, but the Court would not have risked conflating convention and law as it does.

The idea that convention ought to directly inform the scope of a statutory provision is also dubious in light of past caselaw that is inherently premised on the importance of the distinction (for example, that convention cannot be relied upon to avoid the clear requirements of statutory rules to the contrary - for a case in the context of cabinet confidentiality, see: Auditor General of Canada v. Minister of Energy, Mines and Resources, [1985] 1 C.F. 719).

Defenders of the Court here might say that it’s one thing to say convention should not be directly enforced by courts and another to say it cannot inform statutory interpretation to get at the underlying purpose of particular provisions. For example, it may be the case that there are strong reasons to believe a legislature had no intent to alter or mitigate existing convention. But the problem in this case is that convention is wholly silent on the place or relationship of mandate letters to cabinet deliberations. The Court rests its decision quite heavily on a discussion of convention that is largely irrelevant to the central issue.

In fact, the emergent practice of releasing mandate letters to the public (not only at the federal level but in Ontario under former Premier Kathleen Wynne) is precisely what led to this controversy in the first place! Stunningly, the Court pays no heed to this practice - a practice that was unlikely to emerge if those governments felt it would somehow constrain or impair cabinet confidentiality or effective decision-making. In this fundamental sense, recent political practice directly contradicts some of the Court’s conclusions about the effects releasing mandate letters might have on cabinet confidentiality.

This is precisely why judicial attention to political practice and convention is a double-edged sword. On the one hand, complete inattention to the ways our governance actually works in favour of a formalistic approach to the black-letter law of the constitutional system would lead to absurdities and outright contradictions. Indeed, there may be some reason to applaud the Court’s discussion, as my friend and colleague Phil Lagassé does, for the implications we can draw about the importance of the separation of powers. On the other hand, too much attention to political practice and convention raises the spectre of courts conflating law and convention, overstating the micro-level prescriptive significance of our core political rules and norms, and generating potentially inaccurate depictions of the implications modern practice has for both conventions generally and for the laws at issue in discrete cases.