The Constitutional Floor of Judicial Review: The Supreme Court Clarifies the Limits of Privative Clauses

In a significant 2026 constitutional and administrative law decision, the Supreme Court of Canada addressed a fundamental question about the relationship between legislatures, administrative decision-makers, and the courts: how far can legislation go in restricting judicial review?

The case, Democracy Watch v. Canada (Attorney General), arose from an attempt by a public-interest organization to challenge a report of the federal Conflict of Interest and Ethics Commissioner. The Supreme Court ultimately concluded that Parliament cannot prevent courts from reviewing the legality of administrative decisions on questions of fact and law. This form of “legality review” forms part of the constitutionally protected supervisory role of the courts.

The decision also provides guidance on when courts may decline judicial review because another remedy is available and clarifies the constitutional limits of statutory “privative clauses.”

The Dispute Began With a Conflict of Interest Investigation

The dispute followed a 2021 report by the Conflict of Interest and Ethics Commissioner concerning the then Prime Minister’s participation in two federal funding decisions involving a charitable organization.

Following an investigation requested by two members of Parliament, the Commissioner concluded that the then Prime Minister had not contravened the Conflict of Interest Act. A public-interest organization applied to the Federal Court of Appeal for judicial review, alleging errors of fact and law in the interpretation and application of the legislation.

The federal government sought to have the application struck, relying in part on section 66 of the Conflict of Interest Act, which restricted judicial review of the Commissioner’s decisions on questions of fact and law. The proceeding was divided into stages so the courts could first determine whether section 66 barred the proposed review.

The Federal Court of Appeal Declined Judicial Review

The Federal Court of Appeal dismissed the application at the first stage. It concluded that political oversight mechanisms within the statutory scheme constituted an adequate alternative remedy and that judicial review was therefore inappropriate.

The Supreme Court was asked to consider whether the Court of Appeal had properly relied on an alternative remedy and whether section 66 could constitutionally prevent judicial review on questions of fact and law.

When Is an Alternative Remedy Truly “Adequate”?

The Supreme Court explained that people or organizations with standing to challenge an administrative decision have, as a matter of constitutional principle, a right to apply for judicial review. However, judicial review remains discretionary, and courts may decline to consider the merits where an adequate alternative process exists.

The existence of another process is not enough on its own. Courts must consider whether it can actually address the applicant’s concern, including its accessibility, relative advantages, and available remedies.

Political Oversight Was Not an Adequate Substitute

The Supreme Court concluded that the political mechanisms identified by the Federal Court of Appeal were not an adequate alternative. The public-interest organization was challenging the legality of the Commissioner’s conclusions, not simply asking Parliament to review or respond politically to the Commissioner’s work.

No other forum within the statutory scheme could directly review that legality or alter the Commissioner’s conclusions. Unless the decision was quashed through judicial review, it remained unchanged.

Therefore, political accountability and judicial review served different functions. Parliamentary oversight could continue, but it could not determine whether delegated statutory authority had been exercised within its legal limits.

Can Parliament Block Judicial Review?

The Court then considered the broader constitutional issue raised by section 66. Privative clauses are statutory provisions designed to restrict or exclude judicial review of administrative decisions. The question was whether Parliament could prevent judicial review of questions of fact and law while leaving narrower review available.

The federal government argued that only “jurisdictional” review was constitutionally protected. The public-interest organization argued that courts must remain able to review every exercise of delegated public power for legality.

The Supreme Court adopted the broader approach.

The Court Defines a Constitutional Minimum of “Legality Review”

Central to the Court’s reasoning was the rule of law and the constitutional position of superior courts. Sections 96 to 101 of the Constitution Act, 1867 protect core elements of superior court jurisdiction, including their supervisory role over administrative decision-makers and other exercises of delegated government authority.

The Supreme Court held that every exercise of public authority must remain subject to judicial supervision to ensure it stays within its legal boundaries. The Court described this protected function as “legality review,” which extends to questions of both fact and law.

This does not mean courts decide every administrative question themselves. Reasonableness review and the role of administrative decision-makers in interpreting and applying their statutory mandates remain part of modern administrative law. Instead, the constitutional minimum concerns the availability of court supervision. Legislatures may shape administrative schemes and review processes, but they cannot remove the courts’ ability to determine whether delegated public power has been exercised lawfully.

What Happened to Section 66?

The Supreme Court concluded that Parliament intended section 66 to exclude judicial review on questions of fact and law. The provision could not simply be interpreted differently without disregarding that legislative intention.

That intention encountered a constitutional limit. To the extent section 66 prevented judicial review of factual and legal questions, it conflicted with the supervisory jurisdiction protected by sections 96 to 101 of the Constitution Act, 1867.

Therefore, the Court declared that portion of the provision to be of no force and effect under section 52(1) of the Constitution Act, 1982.

The Underlying Conflict of Interest Challenge Remains Unresolved

The Supreme Court did not decide whether the Commissioner’s original conflict of interest conclusions were correct. The appeal concerned whether the judicial review could proceed, not the merits of the underlying challenge. The Court overturned the Federal Court of Appeal’s dismissal and returned the matter so the proceeding could continue.

As a result, the decision resolves the obstacle created by section 66 and the alternative remedy issue while leaving the substantive judicial review for further consideration.

Why the Decision Matters Beyond the Conflict of Interest Act

The ruling extends beyond the federal ethics regime involved in the case. Administrative decision-makers operate throughout federal and provincial governments in areas including tax administration, human rights, environmental regulation, municipal government, licensing, and benefits programs.

The Supreme Court’s decision establishes that Parliament and provincial legislatures cannot constitutionally shield exercises of delegated public power from legality review. Statutory provisions attempting to remove part of that supervisory jurisdiction may therefore encounter constitutional limits.

The ruling also distinguishes judicial review from other forms of oversight. Political accountability, statutory appeals, internal reconsideration procedures, and tribunal processes may sometimes provide adequate alternatives, but that depends on whether they can meaningfully address the legality concern and provide an appropriate remedy.

Judicial Review and the Constitutional Role of the Courts

The Supreme Court’s 2026 decision places the rule of law at the centre of the relationship between administrative bodies, legislatures, and courts.

Legislatures retain substantial authority to create administrative decision-makers, define their mandates, and establish review mechanisms. However, where public power has been delegated by law, courts must remain capable of determining whether that power has been exercised within its legal limits.

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