The Constitutional Limits of Privative Clauses
In Democracy Watch v. Canada (Attorney General), 2026 SCC 28, the Supreme Court of Canada addressed a fundamental question about the relationship between the administrative state and the courts: can Parliament delegate public power to an administrative decision-maker and, at the same time, prevent courts from reviewing whether that power was exercised lawfully?
The Court held that Parliament cannot do so where the effect is to exclude constitutionally protected legality review.
Administrative decision-makers exercise delegated authority across every level of government and in many areas of public policy. Their work is essential to the functioning of the modern state. But delegated authority remains legal authority, and legal authority has limits. Judicial review is the means by which courts supervise the legality of administrative action and ensure that public decision-makers remain within the authority conferred on them by law.
Judicial Review and the Rule of Law
Judicial review is not ordinarily an appeal on the merits of an administrative decision. Its purpose is supervisory. The reviewing court asks whether the decision-maker acted within the authority given to it by law and whether the exercise of that authority respected applicable legal constraints.
A person with standing may seek judicial review, but access to judicial review does not mean that relief will necessarily be granted, or even that the court must decide the merits in every case. Judicial review remains discretionary. Courts may decline relief where, for example, another adequate remedy exists or where other recognized discretionary considerations make judicial intervention inappropriate.
But an alternative remedy must truly be an alternative to judicial review. It must provide another forum capable of supervising the legality of the impugned administrative action and providing meaningful redress.
Privative Clauses
A privative clause is a statutory provision intended to restrict judicial review of decisions made by an administrative body. Such clauses have traditionally reflected legislative intent that certain matters be left primarily to the administrative decision-maker rather than to the courts.
The privative clause at issue in Democracy Watch was s. 66 of the Conflict of Interest Act[1]. It provided that decisions of the Conflict of Interest and Ethics Commissioner were final and could only be reviewed on certain specified grounds under the Federal Courts Act. The practical effect was to exclude judicial review for errors of law and for certain errors of fact.
The case arose after the Commissioner concluded that then Prime Minister Justin Trudeau had not contravened the Conflict of Interest Act in connection with funding decisions involving WE Charity. Democracy Watch sought judicial review of that decision, alleging errors of fact and law. Section 66 prevented review on those grounds.
The Constitutional Limit
The Supreme Court held that s. 66 could not validly bar judicial review on questions of fact and law to the extent those questions formed part of legality review.
The Court grounded that conclusion in ss. 96 to 101 of the Constitution Act, 1867, which protect the core supervisory jurisdiction of the superior courts. Where Parliament assigns that jurisdiction to the Federal Courts under s. 101, it cannot then simultaneously remove a constitutionally protected component of that jurisdiction.
The premise is straightforward. Administrative decision-makers exercise powers conferred on them by legislation. Those powers are granted for particular purposes and subject to legal limits. If the legislature could both define the limits of delegated authority and insulate the delegate from judicial supervision of those limits, the administrative decision-maker could effectively become the final judge of the legality of its own actions.
That result is inconsistent with the constitutional role of the courts.
The Court therefore held that what is constitutionally protected is the availability of legality review: the ability of the courts to determine whether an exercise of public power remained within the boundaries of the authority that was delegated. That supervisory jurisdiction extends to the legality of all aspects of an administrative decision, including questions of fact and law.
A legislature may regulate judicial review. It may prescribe procedures, timelines and forums. It may also legislate standards of review, provided they respect the limits imposed by the rule of law. What it cannot do is remove the courts’ ability to supervise the legality of an exercise of public power.
Section 66 crossed that line. It did not merely regulate the manner in which judicial review would occur. It purported to exclude review of errors of fact and law altogether. To that extent, it encroached on the constitutionally protected supervisory jurisdiction of the courts, and was therefore of no force and effect.
Political Oversight Was Not an Adequate Substitute
The Federal Court of Appeal had declined judicial review on the basis that parliamentary oversight of the Commissioner provided an adequate alternative remedy.
The Supreme Court disagreed. Democracy Watch had no avenue to ask Parliament or another body to review the legality of the Commissioner’s conclusions. Nor was there a mechanism by which those conclusions could be altered through political oversight. Political accountability therefore could not serve as an adequate alternative to judicial review in this case.
The distinction is an important one. Political accountability may address whether an administrative actor should be criticized, supervised or subjected to further consequences. Judicial review addresses a different question: whether public power was exercised lawfully.
Takeaway
Democracy Watch affirms a constitutional floor beneath the administrative state.
Administrative decision-makers may exercise broad authority, and courts may owe deference to the decisions made within that authority. But delegated power is not unlimited. The rule of law requires that there remain a court capable of determining whether the legal boundaries of that power have been respected.
A privative clause may shape judicial review. It cannot extinguish it.
[1] Conflict of Interest Act, SC 2006, c 9, s 2