Ethics watchdog's exoneration of Trudeau on We Charity file can be legally reviewed, top court says

Supreme court says ability to review commissioner's rulings 'is constitutionally guaranteed'

The Supreme Court of Canada has overturned part of the Conflict of Interest Act, ruling that decisions made by the commissioner on the conduct of public office holders can be reviewed by a court on questions of fact and law.

The decision essentially kills Section 66 of the act that says the conflict of interest and ethics commissioner's orders and decisions "shall not be questioned or reviewed in any court" except under limited grounds laid out in the Federal Courts Act.

The unanimous ruling stated that the "authority to review the legality of an exercise of delegated power is the exclusive preserve of the courts" and "all delegated power has limits."

The ability to legally review a decision, the ruling states, "is constitutionally guaranteed" for "all aspects of an administrative decision" and Section 66 of the act "should be declared of no force and effect."

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The case began in 2021 when Democracy Watch asked the Federal Court of Appeal for a judicial review of a decision by then-ethics commissioner Mario Dion regarding the We Charity scandal.

The Liberal government had given We Charity a $43 million contract to run a $900 million student loan program.

The Opposition asked Dion to investigate if Prime Minister Justin Trudeau and Finance Minister Bill Morneau had breached the act for failing to recuse themselves from the cabinet discussion on the nearly $1 billion program.

Dion ruled that Morneau had breached the act but Trudeau hadn't because he did not have as close a relationship as Morneau did with Craig and Marc Kielburger, the founders of We Charity.

'No mechanism other than judicial review'

The attorney general filed a motion with the Federal Court of Appeal asking it to throw out Democracy Watch's application and scuttle its application for a judicial review.

Thursday's decision by the top court does not address any of Democracy Watch's arguments regarding Dion's decision on Morneau and Trudeau, addressing only whether a decision by the commissioner can be reviewed for factual or legal reasons.

"There is no mechanism other than judicial review whereby the legality of the commissioner’s conclusions may be challenged directly. The Federal Court of Appeal erred in dismissing Democracy Watch’s application on this basis," the Supreme Court said Thursday.

Democracy Watch had asked the Supreme Court to not only throw out the lower court decision but also to allow the advocacy organization to proceed with its challenge to Dion's ruling which the top court did, with costs.

Duff Conacher, the co-founder of Democracy Watch, said the ruling "has major implications for the accountability of administrative tribunals and governments across Canada."

It "makes it clear that it is unconstitutional for legislatures to restrict the public's right to go to court to challenge agency, board, commission and tribunal" decisions, he said in a statement.