The case was brought by advocacy group Democracy Watch and involves a challenge to the involvement of former Prime Minister Justin Trudeau with the well-known WE Charity.
The organization was represented at the top court by Professor Paul Daly and constitutional lawyer Sujit Choudhry.
“This is a very important case about the future of Canada’s legal order,” said Daly. “It was a privilege to be involved, all the more so with colleagues from the Faculty, lending their intellectual heft to difficult questions of constitutional and administrative law”.
Daly is the University Research Chair in Administrative Law & Governance and a leading scholar of administrative and public law in the common-law world.
The group Democracy Watch, which advocates citizen participation in public affairs, government and corporate accountability, and ethical behaviour in government and business, was co-founded in 1993 by alum Duff Conacher PhD ‘24.
In June 2020 during the COVID pandemic, Trudeau announced WE Charity, the international development group founded by brothers Craig and Marc Kielburger, would be given a $43-million contract to run a youth summer jobs program worth about $900 million. Since Trudeau and then-Finance Minister Bill Morneau both had extensive family dealings with the now-disbanded charity, conflict-of-interest accusations were made, and the plan was soon cancelled.
After Conacher filed a formal ethics complaint, former federal Ethics Commissioner Mario Dion, LLL ‘79, (also a uOttawa alum) concluded Trudeau was in an apparent conflict of interest but that he did not violate the law.
According to the federal Conflict of Interest Act, that was supposed to be the end of the story. The law stipulates that orders and decisions made by the commissioner in most cases are final and any alleged legal or factual error cannot be challenged in court. This is known as a privative clause.
Democracy Watch believes that Mr. Trudeau was in a real, not apparent, conflict of interest, and fought to challenge the Ethics Commissioner’s decision at the Federal Court of Appeal. The group lost in 2024 because of that privative clause.
Chief Justice Yves de Montigny, a former Faculty member in the French Common Law Program(PCLF), ruled the courts should exercise restraint and adhere to the limits to legal challenges prescribed in the Conflict of Interest Act but presciently noted the answer to this “complex and vexed question will ultimately have to come from the Supreme Court itself.”
This week’s Supreme Court hearing is the first time Democracy Watch has succeeded in bringing a case to the top court.
If Conacher's advocacy group wins, the decision would not only force a review of Dion's 2021 Trudeau WE Charity finding but it could open the door to allow other watchdog decisions to be challenged in court.
The Democracy Watch case is part of a series of recent cases dealing with when and how courts can review decisions of government actors.
In 2019, the Supreme Court held, in the famous Vavilov case, that all exercises of public power by statutory officials must comply with the “culture of justification”, demonstrating justification, transparency and intelligibility to the satisfaction of the courts.
According to Daly, the main legal issue in the Democracy Watch case is whether legislation can create exemptions from the “culture of justification” on some issues – such as interpreting statutes or making findings of fact – by using so-called “privative clauses”.
If such clauses are valid, Daly argued, “the result would be that legal and factual findings with significant consequences for citizens and communities could never be challenged in court.”
Also involved in the case was the Faculty’s Canadian Constitutional Law Initiative, formed in 2023 to contribute directly to the development of Canadian law through interventions in complex constitutional cases.
Led by Academic Co-Leads Professor Vanessa MacDonnell and Eric Adams of the University of Alberta, the Initiative draws on its deep network of academics and practitioners to provide students with a first-rate training opportunity while simultaneously defending constitutional values.
“This case raises critical questions about the role of courts in a constitutional democracy and the extent to which legislatures can restrict judicial review of executive action. The Initiative was thrilled to intervene in this case to assist the Court with how the different constitutional principles at stake in the case should be balanced.”
The Initiative was represented in the appeal by lawyers Andrew Bernstein, Jeremy Opolsky and Alex Bogach from the law firm Torys. Opolsky, Bernstein and MacDonnell teach a January term course at the Faculty on the Supreme Court of Canada, focusing on interventions. A small number of students from the course are then selected to participate in a real-life intervention, providing them with an unparalleled opportunity to see an intervention come to life.
Part time professor Lawrence David also intervened on behalf of the Association québécoise des avocats et avocates en droit de l'immigration.
Fifteen other parties joined the legal arguments, including several provincial governments, the Canadian Civil Liberties Association, Trial Lawyers Association of British Columbia and Canadian Council for Refugees.
After two days of legal argument, the Supreme Court reserved its judgment until a future date.