For decades, Canadian legislatures have enacted privative clauses on the assumption that they could restrict, and sometimes even exclude, judicial scrutiny of administrative decision-making. In Democracy Watch v. Canada (Attorney General),[1] a unanimous nine-judge panel of the Supreme Court of Canada shut that door for good, asserting that legality review of every aspect of an administrative decision, questions of fact and law included, is guaranteed by the Constitution, and no privative clause can validly bar it.
The ruling resolves a long-standing ambiguity in Canadian administrative law over how far legislatures can go in shielding administrative decision-makers from judicial scrutiny, specifically by striking down section 66 of the Conflict of Interest Act[2] to the extent it purported to foreclose review of the Conflict of Interest and Ethics Commissioner’s report on the Prime Minister’s involvement in the WE Charity funding decisions. Coming seven years after Canada (Minister of Citizenship and Immigration) v. Vavilov,[3] the decision may prove to be the most consequential word on judicial review the Court has delivered since then.
Facts
The Conflict of Interest and Ethics Commissioner released a report in May 2021 concluding that then-Prime Minister, Justin Trudeau, had not contravened the Conflict of Interest Act (COIA) in two funding decisions relating to the WE Charity.[4] The report was the result of an investigation pursuant to the COIA requested by two members of Parliament. Democracy Watch, a public interest organization, applied to the Federal Court of Appeal for judicial review, alleging the Commissioner erred in fact and in law.
The Attorney General of Canada moved to strike the application, arguing that section 66 of the COIA barred review of the Commissioner’s decisions on questions of fact and law, and that Democracy Watch lacked standing. After a single judge determined that Democracy Watch met the test for public interest standing, a full panel of the Federal Court of Appeal unanimously dismissed the application on the basis that Democracy Watch had an adequate alternative remedy through Parliament’s political oversight of the Commissioner, without resolving the validity of section 66.
Democracy Watch appealed to the Supreme Court of Canada, and two issues were presented before the Court. First, did the Federal Court of Appeal err in declining judicial review on the basis of an adequate alternative remedy; and second, could section 66 of the COIA validly bar judicial review of the Commissioner’s decisions on questions of fact and law? Put differently, does political oversight by Parliament of the Commissioner substitute for judicial oversight by the courts? The answer is no.
Analysis
The Court allowed the appeal, unanimously, on both issues.
On the first issue, it held that political oversight of the Commissioner is not an adequate alternative to judicial review. Applying the Strickland v. Canada (Attorney General)[5]and Yatar v. TD Insurance Meloche Monnex[6] decisions, the Court reasoned that an alternative remedy is adequate only if it provides an alternative “channel for oversight of the legality… of administrative action.”[7] Section 47 of the COIA makes the Commissioner’s conclusions final and unalterable by anyone, meaning Democracy Watch had no political avenue through which to challenge them. The Federal Court of Appeal’s reliance on Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources)[8] was also misplaced, given that case arose under a different statutory scheme altogether. In that case, the Auditor General had an express statutory right to bring his complaint before Parliament and thereby seek the remedy he wanted, making Parliament the appropriate forum. By contrast, Democracy Watch had no equivalent recourse to Parliament.
On the second and more consequential issue, the Court held that section 66 is of no force and effect to the extent it purports to bar review of the Commissioner’s decisions on questions of fact and law.
Writing for the Court, Wagner C.J. grounded the second holding in “first principles” (as in, fundamental elements of basic constitutional understanding and justice). The Court held that the rule of law is “a fundamental postulate of our constitutional structure,” and an unlimited power immune from scrutiny for legality is, by definition, not a legal power at all.[9] The judicature provisions in sections 96 to 101 of the Constitution Act, 1867[10] assign to the judiciary, exclusively, the authority to review the legality of delegated public power, and that authority extends to every aspect of an administrative decision, not merely questions traditionally labelled “jurisdictional.”[11]
The Attorney General had argued for a narrower constitutional minimum, limited to jurisdictional review, that would leave legislatures free to oust review of fact and law. The Court rejected that view. A legislative provision that purports to eliminate any portion of the courts’ supervisory jurisdiction is ultra vires, whether it operates on a provincial superior court or, as here, a statutory court exercising jurisdiction transferred under section 101 of the Constitution Act, 1867. What is constitutionally guaranteed, the Court was careful to note, is the availability of legality review; whether or not reasonableness itself is constitutionally required was left “to another day.”[12]
The Court further situated this conclusion within a retrospective on the evolution of judicial review. It traced the doctrine from the jurisdictional-error model of Anisminic Ltd. v. Foreign Compensation Commission,[13] through CUPE’s turn toward deference, to Crevier v. Attorney General of Québec’s statement that privative clauses may validly oust judicial review “on questions of law.”[14] Canada read that statement as authority for clauses like section 66. The Court disagreed, holding that Crevier must be read in its 1981 context, when “judicial review” of legal questions still meant correctness review.[15] Central to Crevier was that reasonable errors of law could be shielded from correctness review, not that unreasonable errors of fact or law could be shielded from review altogether. On that reading, Crevier is not an outlier, but a way station along the same doctrinal path that produced Dunsmuir v. New Brunswick’s recognition that no legislature can “completely remove” the courts’ reviewing power, and Vavilov’s elimination of jurisdictional questions as a distinct category.[16] Privative clauses, once treated as near-absolute barriers under Anisminic and later as signals favouring deferential review, have now been stripped of any capacity to exclude legality review altogether.
Looking forward
The implications of Democracy Watch extend well beyond the Conflict of Interest Act. Any federal or provincial statute using a similar “menu-style” privative clause, one that selectively excludes review for unreasonable fact-finding, legal error or other unlawfulness while permitting review on narrower jurisdictional grounds, is now presumptively unconstitutional, and drafters will need to revisit them. Standard-of-review debates also lose some of their edge; if legality review itself is guaranteed, the contest shifts from whether courts can look at a decision to how closely they must look. As such, courts will ultimately scrutinize substance over form.
At the crux, legislators drafting the next generation of privative clauses face a hard truth. There is no wording clever enough to completely lock the courthouse doors. Parliament can redirect judicial review, delay it, or channel it elsewhere, but it cannot make it disappear. For every regulator, tribunal and officer of Parliament operating behind the shield of a privative clause, the shield just got considerably thinner.
For more information on this topic, please reach out to the authors, Brandon Barnes Trickett, Mélanie Power and Tom Nichini.
The authors wish to thank Ira Chandershekar, a summer law student, for her valuable contribution to this article.
[1] Democracy Watch v Canada (Attorney General), 2026 SCC 28 [Democracy Watch].
[2] Conflict of Interest Act, SC 2006, c 9, s 2 at s 66.
[3] Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov].
[4] Democracy Watch, supra note 1 at para 9.
[5] Strickland v Canada (Attorney General),2015 SCC 37 at paras 40-45.
[6] Yatar v TD Insurance Meloche Monnex, 2024 SCC 8 at paras 49, 54 and 56.
[7] Democracy Watch, supra note 1 at paras 17-21.
[8] Canada (Auditor General) v Canada (Minister of Energy, Mines and Resources), [1989] 2 SCR 49 [Auditor General]; Democracy Watch, supra note 1at paras 30-31 .
[9] Democracy Watch, supra note 1at para 1.
[10] Constitution Act, 1867, preamble, ss 96-101.
[11] Democracy Watch, supra note 1at para 39.
[12] Democracy Watch, supra note 1at para 70.
[13] Anisminic Ltd v Foreign Compensation Commission, [1969] 2 AC 147 [Anisminic]; Democracy Watch, supra note 1at paras 45-50.
[14] Crevier v Attorney General of Quebec, [1981] 2 SCR 220; Democracy Watch, supra note 1at paras 45-50.
[15] Democracy Watch, supra note 1at para 44.
[16] Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 at para 52; Democracy Watch, supra note 1at para 61.
