Reference Re Securities Act: Comment on Lee and Schneiderman

• Author: Mahmud Jamal
• Pages: 95-99

• 95

chapter 6

Reference Re Securities Act:

Comment on Lee and Schneiderman

Mahmud Jamal1

It is a privilege to comment on the excellent papers of Professor

Ian Lee2 and Professor David Schneiderman3 analyzing the Su-

preme Court’s decision in Reference Re Securities Act.4

greatly from Professor Lee’s outstanding paper in the Canadian

Business Law Journal on securities regulation and the trade and

commerce power,5 as, apparently, did Dalphond JA of the Quebec

Court of Appeal, who cited it in his dissenting reasons in Québec

(Procureure générale) c Canada (Procureure générale).6

I agree that with Professor Schneiderman that the Supreme

Court’s decision resists the “dominant tide” of constitutional in-

terpretation favouring the operation of legislation of both levels

of government. It certainly appears to be a departure from the

1 I represented the Canadian Bankers Association (CBA) as an intervener

in the Securities Referen ce, supporting the position of the Attorney Gen-

eral of Canada on the constitutionality of the federal Act. The following



the CBA .

2 See Chapter 4

3 See Chapter 5.

4 Reference Re Securities Act, 2011 SCC 66 [Securitie s Reference].

5 Ian B Lee, “Balancing and its Alternatives: Jurisprudential Choice, Fed-

eral Securities Regulation and the Trade and Commerce Power” (2011)

50 Can Bus LJ 72.

6 Québec (Procureure générale) c Canada (Procureure générale), 2011

QCCA 591 at paras 400 and 500. [Quebec Securities Reference].