The Constitutional Foundations of Judicial Review (Again): Democracy Watch v. Canada, 2024 FCA 158

Regular readers will know that there are ongoing debates in Canada about the constitutional foundations of judicial review and, in particular, whether the Supreme Court’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 SCR 653 means there is a core, irreducible minimum of judicial oversight that includes review for reasonableness.

I first set my view out in a blog post (“yes”: see here) and have since elaborated on the implications of my position for limited rights of appeal (see here). In a thoughtful set of reasons in Democracy Watch v. Canada, 2024 FCA 158, de Montigny CJ engaged extensively with my writings on the subject but took a very different view from me. I do not propose to attempt to produce a comprehensive response (or maybe it is a reply or sur-reply at this stage!), as I know from my incoming correspondence that you are all well able to make up your own minds when issues have been fully argued on both sides. Please do read de Montigny CJ’s reasons, especially paras. 58-78, regardless of the fact that they are obiter (see the concurring judges at para. 96).

It is worth highlighting a couple of points, however, as these go to the core of the disagreement between those with competing views of the constitutional core minimum of judicial review of administrative action.

Consider, first, the permissible scope of legislative intervention to limit judicial review. de Montigny CJ is of the view that legislation could eliminate reasonableness review in its entirety:

This is not only consistent with the various dicta of the Supreme Court with respect to the role of judicial review (most explicitly in Crevier and Dunsmuir) and with its insistence on respect for institutional design choices in Vavilov. It is also aligned with the underlying rationale for judicial review in a parliamentary democracy, which is that all exercises of delegated authority by the executive branch must find their source in the law and be respectful of the Constitution (at para. 73).

He goes on to ask, “As long as courts have the ability to intervene in cases where an administrative decision-maker steps out of bounds and impermissibly oversteps its lawful authority, how can it be said that the rule of law is threatened by the insertion of a privative clause in a statute?” But this question begs the question. Given the significant changes wrought by Vavilov, how can one say that a court can determine when a decision-maker has ‘stepped out of bounds’ or ‘overstepped its lawful authority’ without applying the reasonableness standard? Indeed, in Vavilov, the majority of the Supreme Court remarked that “proper application of the reasonableness standard will enable courts to fulfill their constitutional duty to ensure that administrative bodies have acted within the scope of their lawful authority…” (at para. 67; see also at para. 109). To my mind, this passage ties lawful authority to reasonableness review.

Second, there is the issue of respecting legislative intention. de Montigny CJ also sees the downgrading of privative clauses in Vavilov as problematic because it fails to give sufficient weight to parliamentary supremacy:

[P]rivative clauses are downgraded from an important factor in determining the applicable standard of review (as in Dunsmuir) to a mere contextual factor in determining the parameters of a reasonable decision. In light of the high degree of deference to which administrative decision makers are entitled when their decisions are subject to the reasonableness standard, it is not readily apparent what extra protection from judicial scrutiny a privative clause would confer (at para. 66).

As I have suggested previously (and see Koebisch v. Rocky View (County), 2021 ABCA 265, at para. 24), the answer is that a privative clause — full or partial — forms part of the ‘governing statutory scheme’ envisaged by Vavilov. As the majority of the Supreme Court noted there, “where the legislature chooses to use broad, open-ended or highly qualitative language — for example, “in the public interest” — it clearly contemplates that the decision maker is to have greater flexibility in interpreting the meaning of such language” (at para. 110). A privative clause would be an indication that “greater flexibility” is appropriate, with a partial privative clause carrying less weight and a full privative clause weighing heavily in the balance. This could be particularly significant in a situation where an administrative decision-maker has been tasked with interpreting “precise and narrow language” (Vavilov, at para. 110): in such circumstances, a privative clause would instruct the court to give “greater flexibility” in applying the reasonableness standard even though the language being interpreted is precise and narrow.

And now to the facts of the case! Alleging errors of fact and errors of law, the applicant sought judicial review of a report of the Conflict of Interest and Ethics Commissioner concluding that the Prime Minister had not violated conflict of interest legislation by participating in two decisions involving a controversial charitable organization. For de Montigny JA, the partial privative clause excluding judicial review for errors of law and errors of fact meant that the application was doomed to failure; but the concurring judges disagreed, given that previous panels of the Federal Court of Appeal had taken a different view on the constitutional core minimum of judicial review (at para. 96).

All three judges agreed, however, that political oversight can be an adequate alternative remedy to judicial review. de Montigny CJ noted that the Ethics Commissioner is “an independent Officer of Parliament, and the position he occupies is firmly within the legislative branch of government” (at para. 80). In addition, he found that the statutory scheme suggests that Parliament intended political oversight of the Ethics Commissioner to be a central feature:

It is very clear from subsections 44(7), 44(8), 45(3) and 45(4) of the COIA, which require the Commissioner to provide his reports to the Prime Minister, that it is for the Prime Minister to decide how to give effect to the Commissioner’s determination, and for the House of Commons to hold the government to account. The sanction is meant to be political, not judicial. This conclusion is reinforced by the fact that the report of the Commissioner is to be made available to the public, and that its conclusions are not determinative of the measures to be taken (at para. 81).

There are “dual supervisory roles” (at para. 82), but the courts’ task is limited by the partial privative clause to ensuring the Commissioner respects their jurisdiction, grants procedural fairness to affected parties and does not act fraudulently. Furthermore, for de Montigny CJ, “Courts should be loath to perceive judicial remedies as the only effective recourse in every instance where an aggrieved party raises an alleged illegality” (at para. 84, citing Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources), [1989] 2 SCR 49). Ultimately, “courts should not be drawn in disputes raising purely legal or factual issues within the jurisdiction of the Ethics Commissioner” (at para. 88).

As de Montigny CJ notes, this approach is consistent with that taken in provincial superior courts where judicial review has been sought of decisions of officers of the legislative assembly: McIver v. Alberta (Ethics Commissioner), 2018 ABQB 240 at paras. 70-77; Democracy Watch v. British Columbia (Conflict of Interest Commissioner), 2017 BCSC 123 at paras. 35-37.

For my part, I have always been wary of these decisions. If an officer of a legislative assembly occupies a statutory office, with powers and functions accorded by law and — by definition — subject to limitations set out in its parent statute, to my mind it does not obviously follow that the officer’s decisions are non-justiciable.

I appreciate that if someone seeks to raise a political issue before the courts arising from an officer’s decision judicial intervention might very well not be appropriate. However, if as here the issue is whether the officer correctly or reasonably interpreted statutory concepts, excluding judicial review seems quite strange as it means that the legislator has the final word on the interpretation of its own statutes. After all, “[j]udicial review is the means by which the courts supervise those who exercise statutory powers, to ensure that they do not overstep their legal authority” (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 SCR 190, at para. 28). Why would it be any different when an officer of the legislature is administering a statutory scheme?

In that regard, it is notable that the partial privative clause at issue in Democracy Watch expressly preserves judicial review on ‘jurisdictional’ issues: but at what point does an error of law or fact become a potential jurisdictional issue? I would say that the difficulty of drawing this line is, in and of itself, a good reason to take a broad view of the constitutional core minimum of judicial review.

In all events, this is a very interesting decision of which both obiter and ratio will repay careful reading both on the constitutional foundations of judicial review and the adequacy of political oversight as a remedy.

This content has been updated on October 9, 2024 at 02:09.