Director of Fundamental Freedoms Program
The Ontario government’s decision to scrap the 2015 sex ed curriculum and replace it with content from 1998 has been the subject of significant controversy, debate, and more than one legal challenge. In January, the CCLA and our co-applicant Becky MacFarlane were before the Ontario Divisional Court arguing that the decision to revert to the old curriculum violated the right to equality and was an arbitrary decision that should not be upheld. We are waiting for the Court’s decision, as are Ontario’s students, teachers and parents.
To us, the government’s reasons for reverting to the 1998 curriculum are clearly grounded in discriminatory attitudes towards the LGBTQ+ community, despite its statements about respecting parents and listening to “the people”. The government’s own purported reason for the change was that the 2015 curriculum was the product of an inadequate and flawed consultation process. As a result, the government engaged in what the Minister of Education has described as “the largest-ever consultation on education in Ontario’s history”. Early reports about the consultation process demonstrated that there was a huge amount of support for the 2015 sex ed curriculum and little appetite for a reversion to the lessons of the 1990s. However, Premier has already attempted to cast doubt on the consultation process – the one his own government designed and implemented – by saying that “certain groups” flooded the process in its early days and may have skewed the results.
As an organization that is fiercely committed not only to equality but also to government accountability, we wanted to know how the government would take what they learned through the consultation and use it to develop the next curriculum. We had thought that a government that gloats about the extensiveness of its consultation process would want to show off the results. Surely, a government “for the people” would be responsive to the people. At a minimum, the people would be allowed to know what the people said. Turns out we were wrong.
Shortly after the consultation process closed in December of 2018, I made an access to information request to the Ministry of Education, asking for the results or data that the government gathered through the consultation process, particularly for the sex ed issue. The government designed the consultation process in a way that makes requests for access complicated. People wishing to share their views with the government could respond to a targeted survey, but could also send an email, submit a form with lots of spaces for open text, and participate in a telephone town hall. The consultation had no obvious way to control for multiple submissions from the same individual or even to assure that those participating were people residing in Ontario. Apparently, the government received over 70,000 submissions in one form or another – so there would be a lot of information to go through.
I worked with accommodating staff on the Ministry’s Information and Privacy team and pared my request down to weekly summaries of the consultations that Ministry staff had created. This would make the request easier and cheaper to process since it would not involve staff going through tens of thousands of pages of submissions or redacting personal information.
Now, however, the Ministry has denied my request on the basis that the summaries are “Cabinet records” under section 12 of Ontario’s Freedom of Information and Protection of Privacy Act. Since the summaries are purportedly going to Cabinet for discussions about future policy directions, the Ministry argues that they cannot be turned over under access to information laws. The logical conclusion from this position is that if consultations with “the people” will inform discussions in Cabinet (as they should), the people can’t know what the people said.
Why does this matter? A consultation process doesn’t mean that the public gets to decide on policy, but if it is a meaningful one it should allow the public to understand what the government heard and how it arrived at its ultimate decision. Without robust access to information, politicians can spin the results. The Premier’s statement that “certain groups” skewed the process is one example. More recently, the Minister of Education has said that the consultation process showed a concern that the sex ed curriculum did not do an adequate job of teaching about consent. Of course, the 2015 curriculum contained a great deal more content on consent than the 1998 curriculum, but it appears even the 2015 curriculum was considered inadequate by many participants. This is useful information – and apparently, we can look forward to “further updates” on the findings from the consultation by the Minister. But we can only see what the government chooses to tell us, not a summary of what all participants had to say. We are not allowed to see the whole picture, probably because it may show us something that the government prefers we don’t see. We will be left to wonder what the government isn’t telling us, and which people this government is really for. If the point of the consultation was to increase public confidence, shielding the consultation results from public scrutiny directly and fatally undermines this goal.
We’ll be appealing the Ministry’s decision to shield the consultation summaries from disclosure, and will keep you posted on our progress.