More Questions than Answers: The Supreme Court of Canada's Decision in the National Securities Reference

• Author: Michael J. Trebilcock
• Pages: 37-48

• 37

 

More Questions than Answers:

e Supreme Court of

Canada’s Decision in the

National Securities Reference

Michael J. Trebilcock

A. Intro duction

My perspective on the issues before the Supreme Court of Can-

ada in this case is not that of a constitutional expert, nor that of

an expert in securities markets and their regulation, but rather

that of an international trade lawyer-economist steeped in the

academic literature and international policy environment bear-

ing on tariff and non-tariff barriers to trade and on the relevance

of this framework of analysis to internal barriers to trade within

a federation such as Canada’s (to which I have devoted consider-

able attention in the past).1 I also acknowledge at the outset that

     

by the federal government in support of its proposed legislation,

I may be considered less objective on that account.

In much of this literature, a fundamental distinction is drawn

between negative and positive integration. The term “negative

integration” refers to prohibitions on measures that states (or,

in federations or economic unions, sub-national levels of gov-

ernment) are prohibited from taking because they discriminate

against out-of-jurisdiction interests. “Positive integration” refers

1 See e.g. Michael J Trebilcock et al, Federalism and the Can adian Eco-

nomic Uni on

Trebilcock & Daniel Schwainen, eds, Getting There: An Assessment of the

Agreement on Internal Trade (Toronto: CD Howe Institute, 1995).