At the end of July, the Supreme Court of Canada issued its ruling in Democracy Watch v. Canada (Attorney General).  This ruling has enormous implications for governments across Canada.

One of the key issues in the Democracy Watch case was the presence of clauses in the relevant legislation that foreclosed appeal to the courts.  This all stems from the Federal Ethics Commissioner’s investigation and ruling in the WE Charities debacle.  I want to be clear here:  I am not about to engage in a re-examination of the WE Charities debacle – I have many thoughts about it, none of which are really relevant to this ruling.  

The underlying issue in this case is S66 of the Conflict of Interest Act (COIA), which reads: 

Orders and decisions final

66 Every order and decision of the Commissioner is final and shall not be questioned or reviewed in any court, except in accordance with the Federal Courts Act on the grounds referred to in paragraph 18.1(4)(a), (b) or (e) of that Act. 

This type clause has been around for quite some time, and is somewhat common in legislation. I tend to think of them as the “Ha ha – you can’t sue us” clause, and I have long been concerned by the existence of these clauses because they are, without question, designed to prevent the public from challenging laws or decisions of the government that affect them.

On the surface, the argument for these kinds of clauses is to avoid filling the courts with appeals of every regulatory and administrative decision that the government may make.  But they can also become a vehicle whereby governments can essentially write themselves “above the law” by short circuiting the right to ask the courts for judicial review, and either eliminating altogether or severely limiting the grounds available for review.  

While the court didn’t strike the clause entirely as unconstitutional, it effectively drives a stake through the heart of the intent:  

The authority to review the legality of an exercise of delegated power is the exclusive preserve of the courts, assigned to the judicial branch by the judicature provisions in ss. 96 to 101 of the Constitution Act, 1867. The Constitution guarantees the availability of legality review of all aspects of an administrative decision and every exercise of public authority is subject to the courts’ supervisory jurisdiction to ensure that it does not exceed its legal limits. Section 66 of the COIA infringes this guarantee by purporting to bar judicial review on questions of fact and law: to that extent, it is of no force and effect. The order of the Federal Court of Appeal should be set aside and the matter should be remanded to proceed to Stage 2.

I’m hopeful that this ruling puts an end to a common practice I see in Alberta legislation where one of a couple of types of clause appear.  The first type of clause often has the prefix language of “No cause for action”, which usually strips the ability of anyone affected by the legislation to initiate _any_ kind of review of it.  The second type of clause is one that makes the minister the final say in a decision, and then takes away any right of appeal to the courts.  

Why are these unreasonable clauses?  There are several answers here.  First is that the it is the government placing itself and its decisions “outside the rule of law”.  Second, is that far too often it appears to be done with the explicit intent of denying Canadians an opportunity to challenge decisions which appear to be made out of spite or personal animus on the part of whatever part of the government made the decision.  I can think of any number of examples where government bodies have made decisions based far more on animus than on the facts of the matter before them – this is why judicial review by an independent judiciary is so incredibly important.  

In our system, the Judiciary exists not as an arm of the legislative or executive parts of government but as a check on the exercise of power by both the legislative and executive arms of government.  This is really important because as has been demonstrated more than a few times in this country, governments are very willing to do things that would not otherwise pass scrutiny.  

Implications

Legislative

This ruling clearly tells legislators that simply denying or severely restricting people’s rights to appeal a decision or to request judicial review of the decision is not acceptable practice.  In Alberta, I fully expect to hear a bunch of whining about how “Liberal Appointed Judges” are interfering in the province’s affairs.  

Judicial

The implications for the judiciary are not trivial.  They will find themselves subjected to a whole range of cases being appealed for review, some with more merit than others.  I expect that there will be a sizeable number of cases where the judiciary will strike a decision down on review until legislators become more reasonable about things. 

Notwithstanding Clause

You might be wondering what this has to do with the Notwithstanding Clause, and in particular the English Montreal School Board v. Quebec case.  Here, I am speculating wildly, but I see a couple of important points to observe that suggest how the SCC might choose to rule on that case.  

First, I think it makes very clear that the argument made by the provinces that invoking S33 not only renders judicial review of the legislation in question moot, but in fact denies the court the power to engage in a review of the legislation is not going to fly.  The courts are clearly looking at ss96-101 of The Constitution Act, 1867 and saying “nope, we have the power and the obligation to engage here”.  

Second, I think it also signals that the SCC is going to be fairly sympathetic to the Attorney General of Canada’s arguments that in fact there are natural limits to S33 that can be derived from a contextual and purposeful reading of The Charter.  

I think a significant portion of this ruling may well end up chastising legislators for using the Notwithstanding Clause (S33) not to solve difficult legislative issues in urgent situations, but rather to insulate ideological legislation from scrutiny and challenge (as Alberta and Saskatchewan have done in particular).