Supreme Court strikes limit on judicial review of ethics commissioner’s decisions

The Supreme Court of Canada has ruled that Parliament cannot shield the legality of an administrative decision from judicial review by excluding questions of fact and law, overturning the dismissal of Democracy Watch’s challenge to the federal ethics commissioner’s WE Charity report.

In its unanimous July 30 decision in Democracy Watch v. Canada (Attorney General), 2026 SCC 28, the court declared section 66 of the Conflict of Interest Act of no force and effect to the extent that it bars review on those grounds. It allowed the appeal with costs and returned the matter to the Federal Court of Appeal for the second stage of the proceedings.

The ruling did not decide whether former prime minister Justin Trudeau breached the Act or whether the commissioner’s report was legally sound. Chief Justice Richard Wagner, writing for all nine judges, confined the appeal to the availability of judicial review and the validity of the statutory restriction.

A challenge to the WE Charity report

The commissioner’s May 14, 2021 report concluded that Trudeau had not contravened the Act when participating in two funding decisions involving WE Charity. Two members of Parliament had requested the investigation in 2020. Democracy Watch sought judicial review, alleging factual and legal errors in the commissioner’s interpretation and application of the legislation.

Canada moved to strike the application, arguing that the organization lacked standing and that section 66 barred the challenge. A Federal Court of Appeal judge recognized public interest standing in 2022. The proceedings were then divided into a first stage addressing section 66 and a second stage for other issues if Democracy Watch cleared that initial hurdle.

In 2024, the appellate panel dismissed the application because it considered political oversight an adequate alternative to judicial review. Its judges differed on section 66: Chief Justice Yves de Montigny would also have upheld the restriction, while his two colleagues considered prior decisions of their court binding on the constitutional protection for review of factual and legal questions.

Political scrutiny is not a substitute for a legal remedy

The Supreme Court found that the alternative-remedy analysis had gone wrong. Courts may decline judicial review when another suitable process can address the applicant’s concerns, but they must examine the alternative’s accessibility, comparative advantages and available remedies. An alternative need not duplicate judicial review; it must offer an adequate route to scrutinize legality and obtain a corresponding remedy.

The commissioner’s reporting relationship with Parliament did not provide that route for Democracy Watch. The court distinguished the commissioner’s administration of the ethics code for MPs, which is conducted under the House of Commons’ general direction, from the separate administration of the Conflict of Interest Act for public office holders. Canada accepted that parliamentary privilege attached to the former role, not the latter.

The appeal court had relied on a 1989 case in which the auditor general could ask Parliament to obtain information needed for an audit. That was materially different: the auditor general had access to a process capable of delivering the remedy sought. Democracy Watch had no equivalent avenue under the Act to ask Parliament to review the legality of the commissioner’s conclusions.

Section 47 makes those conclusions final, although they do not determine what enforcement measures will follow. The Supreme Court explained that judicial review could lead to the decision being quashed; general political oversight could not substitute for that remedy. Parliament retained its role in supervising the commissioner’s activities and deciding how to respond to recommendations.

The constitutional protection extends to facts and law

Canada argued that only review of jurisdiction was constitutionally protected, leaving Parliament free to exclude review of other factual or legal questions. The court rejected that division. It traced the evolution from older jurisdictional-error rules to modern, deferential review and concluded that the constitutional guarantee concerns the legality of every aspect of an administrative decision.

The protection arises from the courts’ supervisory role under sections 96 to 101 of the Constitution Act, 1867. Delegated public powers have legal limits, and courts must be able to determine whether those limits have been exceeded. Parliament cannot avoid that protection by assigning review to the federal courts and then restricting the supervisory jurisdiction transferred to them.

Section 66 permitted review on specified grounds in the Federal Courts Act, including jurisdiction, procedural fairness, and fraud or perjured evidence. It excluded other grounds addressing errors of law and certain erroneous factual findings. Democracy Watch proposed interpreting the permitted jurisdictional ground broadly enough to include its challenge, but the Supreme Court declined to rewrite the provision against Parliament’s evident intention.

Instead, the court held the exclusion unconstitutional and declared it ineffective to that extent under section 52(1) of the Constitution Act, 1982. The result was a targeted invalidation of the barrier to factual and legal review, not the invalidation of the entire conflict-of-interest regime.

What the court left open

The judgment does not make the precise reasonableness standard developed in Canada (Minister of Citizenship and Immigration) v. Vavilov constitutionally immutable. Wagner distinguished the guarantee that legality review remains available from the particular standards courts use to conduct it. The minimum constitutionally permissible standard of review was left for another case.

Nor does the decision eliminate ordinary procedural limits or the court’s discretion over judicial review. Legislatures can prescribe timelines and forums without effectively shutting out legality review. Courts may still decline to address the merits for reasons such as an adequate alternative remedy, mootness, prematurity or non-justiciability. Those decisions exercise the supervisory jurisdiction rather than remove it.

Proceedings after the appeal

The Federal Court of Appeal’s public docket records a September 29 motion by Democracy Watch seeking production of the commissioner’s investigative materials as a certified tribunal record. An October 13 entry records the commissioner’s request for leave to make submissions about that production request and for directions on procedure. These are recorded procedural steps, not a determination that the report was unlawful.

Read the full Supreme Court judgment: Democracy Watch v. Canada (Attorney General), 2026 SCC 28. The later procedural entries are available through the Federal Court of Appeal’s court-file database by searching A-169-21.