SCC Rules Privative Clauses Unconstitutional in Canada

• The Supreme Court of Canada (SCC) has ruled that Parliament cannot use privative clauses to prevent judicial review.
• The ruling applies to all government bodies in Canada, meaning individuals can now challenge government decisions in court.
• Privative clauses are unconstitutional when they interfere with the courts' constitutional duty to rule on executive power.
• Government decision-makers can no longer shield their decisions from court oversight using privative clauses.
• The SCC's ruling has significant implications for lawyers and compliance officers, who must be aware of the new landscape when advising clients.

In a unanimous decision, the Supreme Court of Canada (SCC) has ruled that Parliament cannot use privative clauses to prevent judicial review. The ruling, which applies to all government bodies in Canada, means that individuals can now challenge government decisions in court, even if they are shielded by privative clauses. This development has significant implications for lawyers and compliance officers, who must be aware of the new landscape when advising clients on matters involving executive power and judicial review.

The SCC's decision was prompted by a case brought by Democracy Watch against the federal government over a 2021 ethics finding on former Prime Minister Justin Trudeau's involvement with WE Charity. The Conflict of Interest Act (COIA) contains a provision, Section 66, that prevents courts from reviewing findings by Parliament's ethics commissioner except in limited circumstances. However, the SCC has now declared this provision unconstitutional and of no force or effect.

The ruling is a major victory for Democracy Watch, which had been seeking to challenge the ethics commissioner's finding that former Prime Minister Trudeau did not engage in a conflict of interest when he approved a program administered by WE Charity.

Privative clauses are legal provisions that purport to prevent courts from reviewing the findings of administrative decision makers. However, the SCC has now ruled that these clauses are unconstitutional when they interfere with the courts' constitutional duty to rule on the legality of executive power. This means that government decision-makers can no longer shield their decisions from court oversight using privative clauses.

The SCC's ruling is based on the principle that all public powers must be legal and have limits, which are set out in delegating statutes, common or civil law, or derived from the Constitution itself. An unlimited power is not a legal power, according to Chief Justice Richard Wagner. The SCC has thus proclaimed that executives around the world will not be able to assert broad and unlimited powers that are not reviewable by the courts.

The implications of this ruling extend beyond the Democracy Watch case. It means that individuals can now challenge government decisions in court, even if they are shielded by privative clauses. This development has significant implications for lawyers and compliance officers, who must be aware of the new landscape when advising clients on matters involving executive power and judicial review.

The SCC's ruling marks a major shift in the balance of power between government decision-makers and the courts. It means that individuals can now challenge government decisions in court, even if they are shielded by privative clauses. This development has significant implications for lawyers and compliance officers, who must be aware of the new landscape when advising clients.

The ruling also reflects a broader trend towards greater accountability and transparency in government decision-making. As Paul Daly, a research chair at the University of Ottawa's Faculty of Law, noted, this decision will be read for decades to come. It means that anytime a decision-maker makes a decision that impacts an individual's rights, privileges, or interests, they can go to court and contest that decision.

The SCC's ruling has significant implications for government decision-makers across Canada. It means that they can no longer shield their decisions from court oversight using privative clauses. This development has significant implications for lawyers and compliance officers, who must be aware of the new landscape when advising clients on matters involving executive power and judicial review.

This ruling has significant implications for lawyers and compliance officers in Canada, as it means that government decision-makers can no longer shield their decisions from court oversight using privative clauses. Lawyers should be aware of this development when advising clients on matters involving executive power and judicial review.

Source: Original reporting via Canadian Lawyer