Though the vast majority of constitutional cases in Canada involve either the Charter or separation of powers in Sections 91 and 92 of the Constitution Act, 1867, every now and then there is a case that invokes some other less discussed section of the Constitution. One very recent case in the latter category is Democracy Watch v. Canada (Attorney General) 2026 SCC 28 which concluded that a statute’s privative clause was unconstitutional and invalid pursuant to Sections 96 – 101 of the Constitution Act, 1867. In Democracy Watch, the Supreme Court concluded that:
- the authority to review the legality of an exercise of delegated power is the exclusive preserve of the courts pursuant to the judicature provisions in Sections 96 to 101 of the Constitution Act, 1867 which establish the supervisory jurisdiction of the superior courts;
- the Constitution guarantees the availability of legality review of all aspects of an administrative decision which is to say on questions of fact and law; and
- every exercise of public authority is subject to the courts’ supervisory jurisdiction to ensure that it does not exceed its legal limits.
In Democracy Watch, the Court concluded that political oversight is not an adequate alternative to judicial review and where it is alleged that a government actor exercised statutory powers in a manner that exceeds their limits, the rule of law requires that courts have the ability to exercise their supervisory jurisdiction to remedy any unlawful exercise of legal authority.