Supreme Court Confirms That Legality Review Is Constitutionally Guaranteed

Key takeaways

• The Supreme Court of Canada ruled in Democracy Watch v. Canada that judicial review for legality of administrative decisions is constitutionally guaranteed.
• Legislative efforts to limit judicial review by using partial privative clauses are unconstitutional, as they cannot exclude questions of fact and law.
• The case goes back to the Federal Court of Appeal to assess the merits of Democracy Watch’s challenge against the Commissioner’s report.

On July 30, 2026, the Supreme Court of Canada delivered a unanimous decision in Democracy Watch v. Canada (Attorney General), 2026 SCC 28, resolving one of the most significant unresolved questions in Canadian administrative law: the scope of the constitutional guarantee of judicial review of administrative decision-makers.

Previous cases have confirmed that there is a constitutional right to apply for judicial review (Yatar v. TD Insurance Meloche Monnex, 2024 SCC 8) and that the constitution guarantees at least some minimum scope for superior courts’ supervisory powers over the executive branch of government (Crevier v. Attorney General of Quebec, [1981] 2 S.C.R. 220). However, the Supreme Court had yet to address squarely what that minimum entails and whether Parliament can validly oust judicial review on questions of fact and law through ordinary legislation.

The Supreme Court has now answered that question definitively: the Constitution guarantees the availability of judicial review for legality of all aspects of an administrative decision. Any legislative effort to shield an exercise of public power from that scrutiny exceeds the constitutional authority of the enacting legislature.

The Court’s decision resolves a decades-long debate about the constitutionality of partial privative clauses — i.e., statutory provisions purporting to exclude judicial review other than in respect of specific grounds of review (e.g., limiting judicial review to questions of “jurisdiction” and procedural fairness). It is now clear that such clauses cannot constitutionally bar judicial review on questions of fact and law. This constitutional guarantee applies to judicial review both within the jurisdiction of provincial superior courts and the Federal Courts.

As a result, the Supreme Court declared the partial privative clause in s. 66 of the federal Conflict of Interest Act (COIA) of no force and effect to the extent it purports to bar review on questions of fact and law.

Background

In May 2021, the Conflict of Interest and Ethics Commissioner released a report which concluded that then Prime Minister Justin Trudeau did not breach the COIA in connection with his participation in two funding decisions relating to the WE Charity. The report resulted from an investigation initiated under s. 44 of the COIA following a request by two members of Parliament.

Democracy Watch applied to the Federal Court of Appeal for judicial review, alleging that the Commissioner made errors of fact and law in his interpretation and application of the COIA. The Attorney General of Canada moved to strike the application, arguing that Democracy Watch lacked standing and that s. 66 of the COIA barred judicial review of the Commissioner’s decision on questions of fact and law.

The motion judge found that Democracy Watch had public interest standing but referred the s. 66 question to a full panel of the Federal Court of Appeal, recognizing that it raised an unresolved debate over the constitutionality of partial privative clauses. In a separate decision, the motion judge split the proceedings into two stages: Stage 1 would determine the validity and applicability of s. 66 of the COIA, and Stage 2 (if reached) would address the merits.

Decision below

The Federal Court of Appeal unanimously dismissed Democracy Watch’s application, concluding that adequate alternative political remedies existed to render judicial review inappropriate.

The Court of Appeal held that the COIA provided for “dual parliamentary and judicial oversight” and that the Commissioner’s obligation to report to Parliament constituted an adequate alternative to judicial supervision. In reaching its decision, the Federal Court of Appeal relied on the Supreme Court’s earlier decision in Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources), [1989] 2 S.C.R. 49. In that case, the Supreme Court declined to grant judicial review because the Auditor General had access to Parliament as an adequate venue for resolving disputes over access to information. The Federal Court of Appeal reasoned that the Commissioner’s similar reporting obligations to Parliament provided an equivalent political remedy in this case.

While the majority of the Federal Court of Appeal would have disposed of the application on this basis alone, Chief Justice de Montigny would have gone further and additionally held that s. 66 validly barred judicial review on questions of fact and law.

The Supreme Court’s decision

The Supreme Court allowed the appeal and remanded the matter to the Federal Court of Appeal to address Stage 2. The Court’s reasons, delivered by Wagner C.J., addressed two issues: first, whether the Federal Court of Appeal erred in declining judicial review on the basis of an adequate alternative remedy; and second, whether s. 66 of the COIA can bar judicial review on questions of fact and law.

No adequate alternative remedy

The Supreme Court held that the Federal Court of Appeal erred in finding that political oversight was an adequate alternative to judicial review in the context of the COIA. Political oversight under the COIA could not provide a remedy for a private party such as Democracy Watch comparable to the remedies available on judicial review.

The Court distinguished Auditor General. In that case, the Auditor General was himself an officer of Parliament empowered to seek redress directly from the House of Commons. In contrast, Democracy Watch had no mechanism under the COIA to challenge the legality of the Commissioner’s conclusions before any body other than the courts. Further, the Supreme Court noted the COIA itself is explicit that the Commissioner’s conclusions “may not be altered by anyone”. Given this, the Court observed that unless the decision is quashed on judicial review, no alternative mechanism exists to change the Commissioner’s findings.

Section 66 is unconstitutional

The Court also addressed the validity of s. 66. Tracing the evolution of Canadian administrative law over the past nearly six decades, the Court explained that what was once called “jurisdictional review” has evolved into legality review on all aspects of an administrative decision. Reasonableness has become the presumptive standard, and the old category of “true questions of jurisdiction” was retired in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65.

Against this backdrop, the Court held that Crevier’s statement that judicial review on jurisdictional questions is constitutionally protected “must be understood to mean that the courts’ ability to conduct legality review is constitutionally guaranteed”, extending to all aspects of an administrative decision, including questions of fact and law. Legality review means “review to ensure that an exercise of public power has not exceeded the boundaries of an administrative decision-maker’s delegated authority”. The Constitution does not permit Parliament to oust the courts’ supervisory jurisdiction over any aspect of an administrative decision.

Applying these principles, the Supreme Court declared that s. 66 was of no force and effect to the extent it bars judicial review on questions of fact and law. According to the Court, s. 66 was not amenable to a constitutionally compliant interpretation and had to be declared invalid to the extent of the inconsistency. Parliament explicitly separated review on questions of fact and law from review on jurisdictional grounds, thereby revealing its intention to oust the former contrary to the constitutional guarantee of legality review.

The Supreme Court specifically addressed the position of the Federal Courts. Parliament has assigned exclusive judicial review jurisdiction over federal administrative decision-makers to the Federal Courts under s. 101 of the Constitution Act, 1867. The Supreme Court confirmed that while Parliament may transfer supervisory jurisdiction from the provincial superior courts to courts created under s. 101, that transfer does not diminish the constitutional core of the jurisdiction being exercised. A privative clause that prevents the Federal Courts from exercising a component of the s. 96 supervisory jurisdiction assigned to them is also inconsistent with the Constitution.

Key insights

Democracy Watch clarifies the constitutional limits of legislative power over judicial review and has far-reaching implications:

• Privative clauses face constitutional limits. Any legislative provision that purports to bar judicial review on questions of fact or law is vulnerable to constitutional challenge. However, the Supreme Court confirmed that privative clauses remain valid to the extent that they signal deference to the administrative decision-maker and inform the standard of review, so long as they do not functionally oust legality review.
• Procedural limits remain permissible. The Supreme Court was careful to note that legislatures retain the power to prescribe timelines, fora, and other procedures for judicial review, and may enact standards of review, provided that these measures do not functionally foreclose legality review.
• The minimum standard of review remains an open question. While the Court confirmed that legality review is constitutionally guaranteed, it expressly declined to hold that the Vavilov reasonableness standard is itself constitutionally entrenched. The Court left this issue for another day.
• Adequate alternative remedy clarified. The Supreme Court’s decision reinforces that political mechanisms such as reporting to Parliament and oversight by committees will not satisfy the adequate alternative remedy test where they do not provide a forum in which the legality of a specific decision can be directly challenged and a commensurate remedy ordered.
• Implications for regulatory design. Legislatures creating new administrative bodies must ensure that judicial review remains available on all grounds. Democracy Watch effectively forecloses the use of partial privative clauses as a mechanism to bar judicial review on questions of fact and law.

The matter now returns to the Federal Court of Appeal for Stage 2, where the merits of Democracy Watch’s substantive challenge to the Commissioner’s report will be addressed. Whatever the outcome of that proceeding, the constitutional principles established in Democracy Watch will shape the boundaries of legislative power over judicial review for years to come.