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1. Overview
In Democracy Watch v. Canada (Attorney General)1, a unanimous Supreme Court of Canada held that sections 96 to 101 of the Constitution Act, 1867 guarantee judicial review for “legality” in respect of every aspect of an exercise of delegated public power. While Parliament may prescribe the procedures governing judicial review and, within constitutional limits, the standard of review, it cannot place questions of fact, law, fairness, or any other aspect of an administrative decision beyond the supervision of the courts.2 The Court accordingly held that section 66 of the Conflict of Interest Act (“COIA”) was unconstitutional to the extent that it barred review of the Conflict of Interest and Ethics Commissioner’s (the “Commissioner”) decisions on questions of fact and law.3
2. The Dispute
In May 2021, the Commissioner released a report concluding that then Prime Minister Justin Trudeau had not contravened the COIA in connection with two federal funding decisions involving the WE Charity.4 Democracy Watch, a national non-profit organization advocating for democratic reform and government accountability, sought judicial review, alleging two errors of law in the Commissioner’s interpretation of the COIA, and an error of fact concerning Mr. Trudeau’s relationship with a WE Charity founder.5 Section 66 of the COIA, however, limited judicial review to certain grounds.6 Expressly excluded from those grounds were judicial reviews aimed at addressing errors of law, erroneous findings of fact, and other actions contrary to law.7 The case therefore squarely raised the constitutionality of “partial privative” clauses and the constitutional entrenchment of judicial review.8
3. The Federal Court of Appeal
A full panel at the Federal Court of Appeal dismissed the application in 2024.9 De Montigny C.J. held that the COIA’s parliamentary accountability mechanisms constituted an adequate alternative to judicial review, and would also have held that section 66 validly barred judicial review on questions of fact and law.10 Boivin and LeBlanc JJ.A. agreed with dismissal on the ground of an adequate alternative.11 However, they declined to join De Montigny C.J. in giving effect to section 66, finding that the Court was bound by its own precedent to maintain the availability of judicial review in the face of partial privative clauses.12
4. The Supreme Court of Canada
The Supreme Court of Canada dealt with two questions on appeal. First, did the Federal Court of Appeal err in declining judicial review on the basis of an adequate alternative remedy? Second, could section 66 of the COIA validly exclude judicial review for errors of fact and law?13
A. Adequate Alternative Remedies
The Court held, unanimously, that the Federal Court of Appeal erred in declining judicial review on the basis of an adequate alternative remedy. However, its holding on the issue was narrow.
As a matter of principle, the Court maintained that an alternative remedy may justify declining judicial review where another forum can adequately examine the legality of the challenged decision and provide a commensurate remedy.14 However, as a matter of fact, it held that the COIA’s political accountability mechanisms failed to provide such a remedy.15 Under the COIA, Parliament could supervise the Commissioner’s activities and determine the political consequences of any findings. But Democracy Watch, a private party, had no means of asking Parliament to determine the lawfulness of those findings. Section 47 of the COIA reinforced the point by providing that the Commissioner’s conclusions “may not be altered by anyone”.16 The Federal Court of Appeal therefore erred in concluding that political oversight of the Commissioner’s activities was an adequate alternative to judicial review of his report.
B. Constitutional Entrenchment of Legality Review
The Court held that sections 96-101 of the Constitution Act, 1867 constitutionally guarantee the availability of judicial review for legality of every aspect of an exercise of delegated public power.17 A statutory provision is therefore unconstitutional to the extent that it ousts legality review.18
Notably, the Court did not hold partial privative clauses to be categorically unconstitutional. Nor did it opine on what minimum standard of review was constitutionally guaranteed. Parliament and legislatures may thus still validly regulate judicial review, including setting the standard of review. However, it is now clear that they cannot immunize or shield any aspect of administrative decision-making from review.
In so holding, the Court clarified a long-unsettled issue in Canadian public law. Total privative clauses had long been recognized as constitutionally ineffective.19 Partial restrictions presented a harder question. As Justice Stratas noted before sending the case for a full-panel hearing, the constitutionality of such restrictions remained “deeply uncertain in law.”20 Vavilov had said that a circumscribed statutory right of appeal does not, by itself, preclude judicial review of other aspects of a decision.21 However, it remained unclear whether Parliament could expressly prohibit review of those aspects. Some judges interpreted Vavilov as affirming applicants’ standing to commence parallel judicial review proceedings in every case where an issue could not be advanced under a circumscribed statutory right of appeal.22 Others disagreed, particularly where the restriction may have been prompted by a valid legislative objectives, such as finality or efficiency.23 Ultimately, these disagreements reflected underlying uncertainty as to the precise point at which the constitutional principle of the rule of law would override legislative choice.
The Supreme Court identified the location of that constitutional limit. According to the Court, the boundary is crossed when legislation makes an aspect of administrative decision-making unavailable for legality review. Legislatures retain substantial authority over the design of judicial review.24 However, that authority is subject to superior courts’ supervisory jurisdiction, which extends to all aspects of administrative decision-making.25 Where a legislature purports to oust the court’s jurisdiction to ensure the legality of an administrative decision, it violates the rule of law guarantee contained in sections 96 to 101 of the Constitution Act, 1867.26 The scope of that rule of law guarantee covers questions of fact, law, fairness, or any other issue.
The Court also put the constitutional authority of the Federal Courts on a firmer footing. Section 101 of the Constitution Act, 1867 permits Parliament to transfer to courts constituted for “the better Administration of the Laws of Canada” some of the supervisory jurisdiction that would otherwise belong to section 96 courts. However, Parliament cannot use its power to reallocate that jurisdiction as a means of extinguishing it.27 Therefore, even a privative clause targeting only the Federal Courts’ conferred supervisory function will be of no force and effect.
C. Partial Privative Clauses and Section 66 of the COIA
Applying these principles to the COIA, the Court found that section 66 crossed the constitutional line.28 The Court declined to read constitutional compliance into section 66. Accordingly, it refused to interpret the permitted ground of jurisdictional error in a manner that encompassed errors of fact and law. The constitutional issue therefore could not be avoided through interpretation. Properly construed, section 66 did what the Constitution forbids: it removed questions of fact and law from legality review. The Court accordingly declared section 66 of no force and effect.29
5. Conclusion
Broadly, Democracy Watch confirms that judicial supervision of the legality of delegated public power is protected by sections 96-101 of the Constitution Act, 1867 and therefore cannot be ousted by ordinary legislation. Narrowly, it confirms that partial privative clauses are unconstitutional to the extent that they place any aspect of public power beyond the reach of legality review.
The decision left some issues for another day: it held off determining a constitutional minimum standard of review or the validity of various legislated standards, such the “patent unreasonableness standard” in British Columbia’s Administrative Tribunal Act.
But the broad takeaway for lawyers and legislatures is that while legislatures may continue to shape review procedures, some judicial forum must remain capable of determining whether delegated public power has been exercised within legal bounds.
Footnotes
1 2026 SCC 28 at paras 7-8, 71-76 [Democracy Watch SCC].
2 Ibid., at paras 71, 75-76.
3 Ibid., at paras 84-88.
4 Ibid., at para 9.
5 Ibid., at para 10; 2024 FCA 158 at para 5 [Democracy Watch FCA].
6 Ibid., at paras 77-78.
7 Ibid., at para 78; see also s. 18.1(4), Federal Courts Act.
8 Ibid., at paras 4-6.
9 Ibid., at para 13; see also Democracy Watch FCA at paras 92-97.
10 Democracy Watch FCA at paras 78-93.
11 Ibid., at paras 94-97.
12 Ibid., at paras 94-97. See Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161; and Canada (Attorney General) v. Public Service Alliance of Canada, 2019 FCA 41.
13 Democracy Watch SCC at para 14.
14 Ibid., at paras 17-20, citing to Yatar v TD Insurance Meloche Monnex, 2024 SCC 8, at paras 49, 54, 56 and 61; See also Strickland v Canada (Attorney General), 2015 SCC 37, at paras 40-45.
15 Ibid., at paras 29-36.
16 Ibid., at paras 27-36.
17 Ibid., at paras 39-44.
18 Ibid., at paras 83-85.
19 See, e.g., Crevier v Attorney General of Quebec, 1981 CanLII 30 (SCC).
20 2022 FCA 208, at para 23. See full discussion at paras 23-58.
21 Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, at para 110.
22 See, e.g., the majority reasons in Canada (Attorney General) v Best Buy Canada Ltd., 2021 FCA 161.
23 See, e.g., the minority reasons in ibid, citing Crevier v Attorney General of Quebec, 1981 CanLII 30. (SCC).
24 Democracy Watch SCC., at para 75.
25 Ibid., at para 76.
26 Ibid., at paras 71, 74, 76.
27 Ibid., at para 73.
28 Ibid., at para 85.
29 Ibid., at para 86-88.
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