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JUDICIAL REVIEW OR STATUTORY APPEAL - Matters not subject to review

Thursday, August 05, 2021 @ 5:32 AM  


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Application by Democracy Watch for judicial review of the Conflict of Interest and Ethics Commissioner’s decision refusing to pursue concurrent examinations of eight public office holders who acted under the direction or authority of the Prime Minister as part of the Commissioner’s investigation in relation to allegations of undue influence exercised upon the Attorney General of Canada to halt a criminal prosecution involving SNC-Lavalin. The applicant argued the Commissioner fettered his discretion and unreasonably refused to exercise his jurisdiction under s. 9 of the Conflict of Interest Act when he stated that he did not have reasonable grounds to pursue concurrent examinations of these eight public office holders involved in this attempt to influence the Attorney General of Canada. The Commissioner found that the individuals who acted under the direction or authority of the Prime Minister in this matter, as well as those who were involved in this matter on behalf of other ministers, could not have influenced the Attorney General simply by their position. Therefore, he found no reasonable grounds to pursue concurrent examinations of their conduct and no reason to believe that they might have breached the Act. The applicant argued the Commissioner’s decision to apply s. 9 to the Prime Minister only, and not to the other eight public office holders, was a failure to properly exercise his jurisdiction under the Act, rendering the decision unreasonable.

HELD: Application dismissed. The Commissioner’s decision not to commence an examination of the eight public office holders was not a reviewable matter. The decision not to investigate a public complaint under the Act did not give rise to a reviewable decision. The decision failed to affect legal rights, impose legal obligations, or cause prejudicial effect to these eight public office holders. The decision clearly concerned an investigation of the Prime Minister’s conduct, through his own actions or those of his agents. The legal rights and prejudicial effects related solely to the Prime Minister’s liability and not his agents’.

Democracy Watch v. Canada (Attorney General), [2021] F.C.J. No. 683, Federal Court of Appeal, Y. de Montigny, M. Rivoalen and G.R. Locke JJ.A., July 5, 2021. Digest No. TLD-August22021006