Making Waves: The Supreme Court of Canada Confronts Stephen Harper's Brand of Federalism

• Author: David Schneiderman
• Pages: 75-94

• 75

 

Making Waves:

e Supreme Court of Canada

Confronts Stephen Harper’s

Brand of Federalism*

David Schneiderman

A. Introduction

   1

(and even French-speaking ones2) predicted that the Supreme

* With apologies to Tom Flanagan for playing with the title of his book

on Stephen Harper, Waiting for the Wave: The Reform Party and the

Conservative Movement, 2d ed (Montreal and Kingston: McGill-Q ueen’s

University Press, 200 9).

1 Both among practitioners: letter from Allan McEachern, Counsel, Fasken

Martineau Dumoulin LL P to Michael Phelps, Chair, WPC-Committee to

Review the Structure of Securities Regu lation in Canada (10 November

2003), online: Wise Persons’ Committee www.wise-averties.ca/reports/

WPC_1C.pdf; letter from L Yves Fortier, Ogilvy Renault to Michael Phelps,

Chair, WPC-Committee t o Review the Structure of Securities regulation

in Canada (10 November 2003), online: Wise Persons’ Committee www.

wise-averties.ca/reports/ WPC_1A.pdf; letter from John B Laskin, Torys

LLP to Michael Phelps, Chair, WPC- Committee to Review the Structure

of Securities regulation in Canada (10 November 2003), online: Wise Per-

sons’ Committee www.wise-averties.ca/reports/WPC_1B.pdf; and among

scholars: Philip Anisman & Peter W Hogg, “Constitutional Aspects of

Federal Securities Legislation” in Philip Anisma n et al, eds, Proposals for

a Securities Market Law for Canada, vol 3 (Ottawa: Consumer and Corpor-

ate Affairs Canada, 1979); Patrick J Monahan, Constitutional Law, 3d ed

(Toronto: Irwin Law, 2006) at 297; Ian B Lee, “ Balancing and Its Alterna-

tives: Jurisprudential Choice, Federal Securities Legislation and the Trade

and Commerce Power” (2011) 50 Can Bus LJ 72.

 

Polyphony and Paradoxes in the Regulation of Securities Within the Can-



 •  

Court of Canada would validate the proposed Canadian Secur-

ities Act3

that federal regulation of cross-border trade in securities was au-

thorized by section 91 of the Constitution Act, 1867, under the

Citizens Insurance Co v Parsons, as a matter fall-

ing under interprovincial and international trade.4 Only a short

leap of logic was required to maintain that federal authority ex-

tended to the establishment of a single national regulator under



concerning general 

Court of Canada had condoned the use of the general trade and

commerce authority in the General Motors of Canada Ltd v City

National Leasing case.5 Long denied the federal government by

the courts, the second branch of trade and commerce authority

extends to largely intraprovincial transactions so long as the fed-

  

C.J. in General Motors.6 There seemed little basis for hesitation

-

posed Securities Act. As legal federalism was no longer obsessed

with exclusive jurisdictional domains, the Court would now be

expected to tolerate all kinds of overlap between the two levels of

government. All that seemed to be required was federal boldness,

and the Court would pretty much get out of the way. Opposition

seemed f utile.



are canvassed in Section B below. Yet the Court turned against

this dominant consensus. The burden taken up in Section C is to

understand why the Court decided the Securities Reference7 the

other way. In addition to doctrinal and comparative constitutional



non-legal. This is because much of the Court’s constitutional doc-

trine cannot be explained with reference to legal resources alone

Me a Field of Jurisdiction’: Regulating Securities, Securi ng Federalism”

(2010) 51 Sup Ct L Rev (2d) 551.

3 Proposed Canadian Secur ities Act, Order in Council PC 2010-667.

4 Citizens Insurance Co v ParsonsParsons].

5 General Motors of Canada Ltd v City National Leasing

[General Motors].

6 Ibid.

7 Reference Re Securities Act, 2011 SCC 66 [Securities Reference].