Canadian Constitution Guarantees Availability Of Judicial Review Over All Aspects Of Administrative Decisions

Key Takeaways

• In Democracy Watch v Canada (Attorney General), 2026 SCC 28, the Supreme Court of Canada (SCC) unanimously held that the Constitution guarantees the availability of “legality review” as a core minimum of judicial review.
• This minimum requires that courts be able to review all exercises of delegated public authority (which range from regulation-making to individualized administrative decision-making by boards, tribunals or officials) to ensure that the authority was used within its legal limits and in a manner consistent with the purpose for which the authority was granted.
• A paramount legal limit on all exercises of delegated public authority is rationality. To determine whether an administrative decision is rational, courts must be able to review all aspects of the decision, including questions of fact or law.
• Any statute that attempts to bar the availability of the constitutionally guaranteed “legality review” – by limiting judicial review to procedural fairness or jurisdictional questions, for example – is unconstitutional.

Background and Decision

The case stemmed from Democracy Watch’s application to the Federal Court of Appeal (FCA) for judicial review of a finding by the Ethics Commissioner that former Prime Minister Justin Trudeau had not contravened the Conflict of Interest Act (COIA) when he participated in funding decisions related to the WE Charity. The Attorney General of Canada brought a motion to strike the application and the FCA dismissed Democracy Watch’s application. All judges of the FCA held that the political process was an adequate alternative remedy to judicial review.

On appeal, the SCC disagreed with this conclusion and decided that the political process did not offer Democracy Watch an adequate alternative remedy to judicial review. The SCC therefore was required to consider the constitutional validity of section 66 of the COIA, which permitted judicial review of the Ethics Commissioner’s decision on questions of jurisdiction, but purported to bar such review on questions of fact or law. The SCC concluded that section 66 of the COIA was contrary to the Constitution of Canada and could not bar Democracy Watch’s application. 

The SCC had already decided, several decades ago, that a statute could not constitutionally shield an administrative decision-maker from judicial review on questions of jurisdiction. Yet, since then, successive sea changes in the law of judicial review had left litigants grappling with the exact scope of the constitutionally guaranteed minimum. It is now clear that the minimum is not limited to jurisdictional questions, but encompasses legality review on all aspects of an administrative decision, including questions of fact and law. This is the guaranteed minimum of judicial review both in provincial superior courts and in federal courts. As section 66 of the COIA clearly purported to prevent judicial review on questions of fact and law, it had to be declared unconstitutional. This conclusion is expected to have widespread repercussions on several provisions restricting judicial review (privative clauses) that continue to exist in federal and provincial legislation in Canada.

Importantly, the case is not about standards of review or about the methodology of judicial review. In Vavilov, the SCC established a presumption of judicial review on a standard of reasonableness for most types of questions, but made clear that such presumption could be displaced where a legislature explicitly prescribes through statute that the courts should apply a different standard when reviewing the decisions of a particular decision-maker. The breadth of the legislatures’ discretion remains an open question after Democracy Watch. The SCC did not constitutionalize the Vavilov reasonableness standard or otherwise clarify what minimum standard is constitutionally required to functionally enable courts to ensure that public power is used rationally, within its legal limits, and in a manner consistent with the purpose for which it was granted. The availability of legality review as a matter of constitutional principle also does not displace other legal doctrines that determine whether relief should be granted or declined on an application for judicial review.

The SCC’s decision ultimately reflects rare unanimity on the core implications of the rule of law. Against a backdrop of rising global uncertainty regarding judiciaries’ ability to curb executive authority, the SCC has taken a clear position: no aspect of an exercise of public power is beyond judicial scrutiny in Canada. “Under the rule of law, all public powers must be legal, and all legal powers have limits […] An unlimited power is, definitionally, not a legal power.” Following Democracy Watch, courts will remain empowered to protect Canadians against unfettered discretion or arbitrary exercises of public power, regardless of any attempt by the government of the day to escape their supervision.