The Constitutional Guarantee Of Judicial Review: Democracy Watch v. Canada

This Insight was prepared with assistance from summer student Sarah Hodson.

In Democracy Watch v. Canada (Attorney General), 2026 SCC 28, the Supreme Court of Canada clearly defined the constitutional guarantee of judicial review and ruled on the constitutionality of legislative provisions that limit judicial review.

The decision sets an important new constitutional framework for administrative law and will affect how courts assess legislative efforts to limit judicial review across Canada.

Background

In 2019, the Supreme Court of Canada recalibrated and clarified the law respecting judicial review in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65. Vavilov confirmed that reasonableness is the presumptive standard of review of administrative decisions and noted that administrative decision making cannot be entirely shielded from review. Vavilov did not directly address the constitutionality of partial privative clauses, which are statutory provisions that purport to bar judicial review on some, but not all, grounds. Since Vavilov, lower courts have taken inconsistent approaches to whether such clauses are constitutionally valid.

In 2021, the Federal Conflict of Interest and Ethics Commissioner issued a report which concluded that former Prime Minister Justin Trudeau had not violated the Conflict of Interest Act (COIA) when he participated in two Federal funding decisions relating to a certain charity.

Democracy Watch, a citizen advocacy group, sought judicial review of the Commissioner’s decision, arguing that federal Conflict of Interest and Ethics Commissioner made errors of fact and law in his report. The Attorney General of Canada brought a motion to strike Democracy Watch’s application on the basis that s. 66 of the COIA prohibited judicial review of the Commissioner’s decisions on questions of fact and law.

The Federal Court of Appeal dismissed Democracy Watch’s application, holding that there were adequate alternative political remedies to judicial review, as the Commissioner was required to provide an annual report to Parliament.

Adequate alternative remedies

At the outset, the Supreme Court revisited some of its earlier decisions on the issue of adequate alternative remedy. The Court previously decided that courts must, at a minimum, consider applications for judicial review to determine whether judicial review is appropriate in each case. However, because judicial review is discretionary, where there is a basis for the court to decline relief, it does not need to address the merits of a judicial review application.

One reason for a court to refuse judicial review is where there is an adequate alternative remedy. While the process and the remedies offered by an alternative remedy do not need to be identical to those available on judicial review in order for the alternative remedy to be “adequate,” the alternative remedy must be adequate in all of the circumstances to address the applicant’s concern. Relevant factors to be considered in analyzing “adequacy” include the relative advantages of each forum, their accessibility to the applicant and the remedies available.

The Court concluded that no adequate alternative to judicial review existed. Although the Commissioner reports annually to Parliament, that reporting process offered no meaningful recourse to Democracy Watch because it had no right to seek review of or relief from, the Commissioner’s decision through Parliament.

The constitutional guarantee of judicial review

More significantly, the Supreme Court of Canada concluded that judicial review is constitutionally guaranteed. Sections 96 to 101 of the Constitution Act, 1867, known as the judicature provisions, guarantee the existence of superior courts and protect the essential aspects of the courts’ jurisdiction. One such essential aspect is the ability of the courts to supervise government action through judicial review.

The Court articulated a form of “legality review” based on the principle that reviewing the legality of delegated decision-making is a core function of the courts. As a result, the Constitution protects the courts’ ability to review all aspects of an administrative decision to determine whether the decision-maker has acted within its legal authority.

For this reason, legislation which prevents judicial review is ultra vires – it is beyond the limits of a legislature’s constitutional authority. In considering whether a particular legislative provision is unconstitutional on this basis, courts must look at its substance and ask whether it has the effect of preventing judicial review of any aspect of an administrative decision.

In the present case, s. 66 of the COIA limited the scope of judicial review of the Commissioner’s reports to certain grounds, such that it ousted judicial review on questions of fact and law. The Court concluded that the provision was therefore inconsistent with the Constitution Act, 1867, and should be declared of no force and effect to the extent that it precluded judicial review on questions of fact and law. The Court emphasized that legislatures remain able to prescribe procedures for judicial review, including timelines, fora and legislated standards of review, provided the supervisory role of the courts is not ousted.

Key takeaways

Democracy Watch is a significant decision for any person looking to challenge or defend administrative decisions where a privative clause limits the scope of judicial review. The decision confirms the constitutional boundaries within which legislatures may structure judicial review:

• The Constitution guarantees the availability of legality review of all aspects of an administrative decision, including questions of fact and law, and legislative efforts to oust any aspect of this review are unconstitutional.
• A partial privative clause that purports to bar judicial review on questions of fact and law is unconstitutional.
• Political oversight mechanisms (such as reporting to Parliament) are not adequate alternatives to judicial review where the applicant has no recourse to ask Parliament or any other body to review the legality of the impugned decision.
• The decision does not constitutionally entrench the Vavilov reasonableness standard itself. What minimum standard of review is constitutionally required remains open for a future decision.
• Legislatures retain the ability to prescribe procedural rules for judicial review (e.g, timelines, fora, legislated standards of review), provided the courts’ supervisory role is not ousted.

The practical significance of this decision extends beyond the COIA. Many Federal and Provincial statutes across Canada contain partial privative clauses that limit judicial review on certain grounds. Those provisions must now be re-examined in light of Democracy Watch. Any privative clause that purports to oust legality review on questions of fact and law is vulnerable to constitutional challenge.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.