Case in Brief

A Case in Brief is a short summary of a written decision of the Court, drafted in plain language. These summaries are prepared by staff of the Supreme Court of Canada. They do not form part of the Court’s reasons for judgment and are not for use in legal proceedings.

Democracy Watch v. Canada (Attorney General)

Case summary

The Supreme Court of Canada rules that Parliament cannot remove the courts’ constitutional role of reviewing whether public authorities acted within the law.

This case is about whether Parliament can prevent courts from reviewing certain decisions made under the Conflict of Interest Act. This act establishes rules to help prevent conflicts between the public duties and private interests of federal public office holders. It gives the Conflict of Interest and Ethics Commissioner authority to investigate possible contraventions and issue reports setting out their findings and conclusions.

In 2021, the Conflict of Interest and Ethics Commissioner investigated the former Prime Minister Justin Trudeau’s participation in two funding decisions involving the WE Charity. The Commissioner concluded that the Prime Minister had not violated the Conflict of Interest Act.

Democracy Watch, a non-profit organization that advocates for government accountability, disagreed with the Commissioner’s conclusions. The organization applied to have the Commissioner’s decision judicially reviewed by the Federal Court of Appeal. Judicial review is a process that allows courts to determine whether governments and other public decision makers have acted within the limits of the authority given to them by law. The Attorney General of Canada opposed the application. It argued that the Commissioner’s decision could not be judicially reviewed because of section 66 of the Conflict of Interest Act. This section provides that the Commissioner’s decisions on questions of fact and law are not subject to judicial review.

The Federal Court of Appeal agreed that section 66 barred it from reviewing the decision. As a result, it dismissed Democracy Watch’s application without considering whether the Commissioner’s decision was lawful. Democracy Watch appealed to the Supreme Court of Canada.

The Supreme Court allowed the appeal.

Section 66 of the Conflict of Interest Act violates the constitutional guarantee that courts can review whether public authorities have acted lawfully.

Writing for a unanimous Court, Chief Justice Wagner began by explaining that the rule of law requires public authorities to act within the limits of the powers given to them by law. To ensure that they do so, the Constitution guarantees that courts can review whether public authorities have acted lawfully.

Chief Justice Wagner further explained that Parliament cannot remove the courts’ constitutional role of reviewing whether public authorities have acted within the law. Because section 66 of the Conflict of Interest Act prevents courts from reviewing the Commissioner’s decisions on questions of fact and law, it is unconstitutional and of no force or effect.

Chief Justice Wagner noted that courts may sometimes decline to hear an application for judicial review if another process can adequately address the applicant’s concerns. However, in this case, political oversight of the Commissioner’s reports was not an adequate alternative. While Parliament may question or debate the Commissioner’s conclusions, it cannot determine whether the Commissioner acted within the law. The Conflict of Interest Act does not provide another process for a court to review the legality of the Commissioner’s decision.

For these reasons, Chief Justice Wagner set aside the Federal Court of Appeal decision and returned the matter to that court to consider whether the Commissioner’s decision was lawful.