Top court asked to allow challenge of decision clearing Trudeau of ethics breach in WE Charity controversy

Canada's top out margaret court is audience net arguments on th in a case resurfacing former prime minister Justin Trudeau's role in the WE Charity scandal, which could bring sweeping changes to how Canadians hold their elected officials accountable.

The Supreme Court of Canada is wrapping up two days of hearings after Democracy Watch challenged a 2021 decision by the federal ethics commissioner that cleared Trudeau of a conflict of interest.

That ethics finding stemmed from the Liberal government's decision to give WE Charity a $43-million contract to run a $912-million student grant program amid family connections Trudeau and then finance minister Bill Morneau had with the organization.

Former ethics commissioner Mario Dion found Morneau breached the Conflict of Interest Act when he failed to recuse himself from cabinet deliberations on the contract, but concluded Trudeau did not.

Duff Conacher, co-founder of Democracy Watch, wants the opportunity to try to overturn Dion's decision in the Federal Court of Appeal.

"If the ethics commissioner can't be challenged in court, you have a closed loop where the ruling party cabinet chooses their own watchdog and then that watchdog's an unaccountable czar who can protect the people who give them the job," he said, reflecting the argument his group is making to the Supreme Court.

Since Trudeau is no longer prime minister, several Supreme Court justices suggested on Wednesday that the appeal court could find the case moot. But Democracy Watch is arguing Dion's decision should be reviewed on principle for future ethical issues that could arise.

"It would exponentially increase government, federal government ethics standards," Conacher said.

If Conacher's advocacy group wins, the decision would not only force a review of Dion's 2021 Trudeau WE Charity finding. Its far-reaching implications would include opening the door to allow any watchdog decision to be challenged in court.

"It's clarifying the extent to which the court can watch [the watchdog] effectively," said Brandon Barnes Trickett, partner in public law litigation practice at Dentons Canada in Toronto.

But he said that in exchange for increased accountability, there would be an increase in administrative burden, costs and the timeliness of delivering justice. 

"That's the eternal balancing act in which Parliament and these decision-makers and the public are all engaged: How much justice and how much accountability and how much thoroughness and how much expertise can we afford?" Barnes Trickett said.

The case was brought to the high court after the Federal Court of Appeal dismissed Democracy Watch's initial request for judicial review. The court said accountability through the Conflict of Interest Act mainly rests with Parliament. Democracy Watch appealed.

This is the first time the political accountability group is a main party in a case before the top court.

Lawyers for the advocacy group and the federal government made their arguments on Wednesday. Fifteen other parties are set to make arguments on Thursday as interveners, including the Canadian Civil Liberties Association, Trial Lawyers Association of British Columbia and Canadian Council for Refugees.

Senior reporter

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