In a highly anticipated decision, the Supreme Court of Canada unanimously confirmed the existence of a constitutional guarantee of judicial review of the legality of administrative decisions. The case, Democracy Watch v. Canada (Attorney General), is a landmark decision for Canadian public law. It reinforces the rule of law and reaffirms the role of the courts within our constitutional order.
Background
This case arose out of a 2021 report by the Conflict of Interest and Ethics Commissioner, which concluded that former Prime Minister Justin Trudeau had not violated the Conflict of Interest Act (the “Act”) by participating in two decisions concerning funding for the WE Charity. Democracy Watch, a non-profit organization, applied to the Federal Court of Appeal for judicial review of the report, alleging certain errors of fact and law. The Act, however, contains a privative clause that bars judicial review of the Commissioner’s reports except on questions of jurisdiction, procedural fairness or where the Commissioner acted or failed to act by reason of fraud or perjured evidence.
In 2024, the Federal Court of Appeal dismissed Democracy Watch’s application. The three-judge panel found that the political oversight provided for under the Act was an adequate alternative remedy, rendering judicial review unwarranted. Chief Justice de Montigny held that the privative clause would also have barred the requested review. In his view, the clause is constitutional because it complies with Crevier v. Attorney General of Quebec (“Crevier”) by preserving judicial review for questions of jurisdiction. Democracy Watch appealed the decision to the Supreme Court.
On July 30, 2026, the Supreme Court allowed Democracy Watch’s appeal and returned the matter to the Federal Court of Appeal to be decided on the merits. The Court found that 1) the political oversight provided for under the Act is not an adequate alternative remedy to the relief available on judicial review, and 2) the privative clause is unconstitutional, as it does not permit review of the legality of every aspect of the Commissioner’s decisions.
Political oversight is not an adequate alternative to judicial review
Judicial review is a discretionary remedy that a court may validly decline to grant in certain circumstances, notably where an adequate alternative remedy exists. In this case, the Federal Court of Appeal had found that the Commissioner’s obligation to submit annual reports to a House of Commons standing committee constituted an adequate alternative to judicial review.
The Supreme Court rejected this conclusion. It explained that determining whether an alternative remedy is adequate does not require its process and the relief it affords to be identical to those available on judicial review. However, the alternative remedy must be adequate in all circumstances to address the applicant’s concern. As the Court put it, “[t]here is nothing in the [Act] that provides interested parties like Democracy Watch with an alternative forum in which to seek the remedy available on judicial review: consideration of the legality of the Commissioner’s report.”
The legislature cannot exclude judicial review of the legality of any aspect of an administrative decision
The Supreme Court held that the privative clause in the Act is unconstitutional, stating unequivocally that “the legality of every aspect of an administrative decision, and every exercise of public power, is subject to the supervision of the courts.” This supervisory role is a true cornerstone of the rule of law and forms part of the inherent jurisdiction protected by sections 96 and 101 of the Constitution Act, 1867.
As a general matter, measures taken by the legislature to limit legality review, such as privative clauses, are therefore ultra vires, since the Constitution guarantees the role of the courts in ensuring that every aspect of an administrative decision has its source in law.
The Supreme Court recontextualized the remarks of Chief Justice Laskin, who, in the early 1980s, wrote in Crevier that “privative clauses, when properly framed, may effectively oust judicial review on questions of law and, indeed, on other issues not touching jurisdiction.” At the time, privative clauses were found in a context where, until Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corporation (“CUPE”), judicial review operated as correctness review, giving rise to a de novo consideration by the courts of the issues in dispute, notwithstanding the fact that the legislature had assigned those to administrative decision-makers. By the time Crevier was decided, the Supreme Court, in CUPE, had only just reoriented the analysis of judicial review toward the question of whether the administrative decision-maker had reached a conclusion so unreasonable as to result in a loss of jurisdiction. Crevier must therefore be understood to mean that an error of law made by an administrative decision-maker does not justify a correctness review where the error is not so unreasonable as to constitute a jurisdictional error. Today, the deference toward administrative decision-makers that privative clauses were meant to secure is firmly anchored in the presumption of reasonableness review set out in Canada (Minister of Citizenship and Immigration) v. Vavilov. As a result, their relevance has been considerably diminished, and their unconstitutionality, established, to the extent that they limit any aspect of the courts’ supervisory jurisdiction guaranteed by the Constitution.
That said, it should be noted that the Court left for another day the question of “when a legislated standard of review will trench on the constitutional core of the courts’ supervisory jurisdiction (…).”
Conclusion
In Democracy Watch v. Canada (Attorney General), the Supreme Court builds on the reflection it had already begun in Reference re Code of Civil Procedure (Que.), art. 35—this time unanimously—concerning the inherent jurisdiction of superior courts protected by the Constitution. In this historic reference, the Supreme Court held that superior courts are tasked with implementing “the three fundamental facets of the rule of law: equality of all before the law, the creation and maintenance of an actual order of positive laws, and oversight of the exercise of public powers.” Democracy Watch v. Canada (Attorney General) clarifies that, while section 101 of the Constitution Act, 1867 allows Parliament to confer on the federal courts part of the core jurisdiction of the superior courts protected by section 96, it cannot, in doing so, limit or circumvent that jurisdiction.
The authors are grateful to articling student David Brady for his invaluable contribution to this article.