Randy Crosson is the Executive Director of Freedoms Advocate, freedomsadvocate.ca, a Canadian charity that supports constitutional and human rights litigation.
The government cannot make a law that puts its decisions beyond review by the courts. That is the clear message from the Supreme Court of Canada’s July 30 ruling in a case that began with a controversy involving former prime minister Justin Trudeau and WE Charity but ended with a decision about the limits of government power.
The case began during the COVID-19 pandemic, when the federal government was creating a program to provide jobs for post-secondary students. Government officials recommended that WE Charity administer the program. That raised concerns because Trudeau and his family had connections to the charity. His then-wife, Sophie Grégoire Trudeau, had been involved with WE Charity, and the couple had participated in its events.
Trudeau initially removed the proposal from the Cabinet agenda after learning of WE Charity’s involvement. The proposal later returned after officials argued that WE Charity was the only organization able to deliver the program within the required timeline. Trudeau and Cabinet approved it.
Two MPs asked the federal Conflict of Interest and Ethics Commissioner to investigate whether Trudeau had violated the Conflict of Interest Act. In May 2021, the commissioner concluded that he had not. Democracy Watch, an organization that advocates for government accountability, then challenged the commissioner’s finding in court.
The challenge centred on Section 66 of the Conflict of Interest Act. It said the commissioner’s decisions were final and could not be questioned or reviewed by a court, except in limited circumstances. The Federal Court of Appeal ruled that the provision prevented it from hearing Democracy Watch’s challenge.
Democracy Watch appealed to the Supreme Court, which ruled that Parliament could not prevent courts from reviewing government decisions, including whether the ethics commissioner had made a legal error in his ruling.
Government officials get their powers from laws passed by Parliament or a provincial legislature. Those laws set out what officials can and cannot do. The Supreme Court said courts have a constitutional role in deciding whether public officials have stayed within those legal limits.
That is the basic idea behind judicial review. It is not about whether a court agrees with a government policy. It is about whether the official who made the decision had the legal authority to do so and followed the law.
The Supreme Court found Section 66 unconstitutional because it prevented courts from reviewing the commissioner’s decisions on questions of fact and law. The court declared that part of the section to be of no force or effect.
The ruling has implications beyond this case involving the federal ethics commissioner. The Supreme Court’s decision means a legislature cannot completely remove the courts’ ability to review whether a public authority has acted within its legal limits. The exact effect will depend on the law involved and the circumstances of each case, but a provision that attempts to prevent any court review of the legality of public power cannot stand.
The decision also resolves an important question in Canadian administrative law. In 1981, the Supreme Court ruled in Crevier v. Attorney General of Quebec that legislatures could not prevent courts from reviewing whether an administrative decision-maker had acted within its jurisdiction. Later cases changed the way courts approached judicial review. The new ruling confirms that the constitutional protection goes beyond jurisdiction and includes review of questions of fact and law.
For Democracy Watch, the decision means its challenge to the ethics commissioner’s 2021 report can continue. The Supreme Court has sent the case back to the Federal Court of Appeal, where the organization can pursue its application for judicial review. The Federal Court of Appeal will now have to consider whether the ethics commissioner’s decision was lawful. The Supreme Court’s ruling removes the legal barrier that had prevented that review from taking place.
That brings the case back to its original question about the ethics commissioner, while leaving a much broader rule in place for other government decisions.
Parliament has the power to create laws and give government officials authority to act. But that authority comes from the law and is limited by it. The same principle applies to provincial governments and the public bodies they create.
The Supreme Court has now made it clear that government power is not unlimited.
Randy Crosson is the Executive Director of Freedoms Advocate, freedomsadvocate.ca, a Canadian charity that supports constitutional and human rights litigation.