For decades, Canadian legislatures have enacted privative clauses on the assumption that they could restrict, and sometimes even exclude, judicial scrutiny of administrative decision-making. In Democracy Watch v. Canada (Attorney General),[1] a unanimous nine-judge panel of the Supreme Court of Canada shut that door for good, asserting that legality review of every aspect of an administrative decision, questions of fact and law included, is guaranteed by the Constitution, and no privative clause can validly bar it.
The ruling resolves a long-standing ambiguity in Canadian administrative law over how far legislatures can go in shielding administrative decision-makers from judicial scrutiny, specifically by striking down section 66 of the Conflict of Interest Act[2] to the extent it purported to foreclose review of the Conflict of Interest and Ethics Commissioner’s report on the Prime Minister’s involvement in the WE Charity funding decisions. Coming seven years after Canada (Minister of Citizenship and Immigration) v. Vavilov,[3] the decision may prove to be the most consequential word on judicial review the Court has delivered since then.
[1] Democracy Watch v Canada (Attorney General), 2026 SCC 28 [Democracy Watch].
[2] Conflict of Interest Act, SC 2006, c 9, s 2 at s 66.
[3] Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov].
