The General Trade and Commerce Power after the Securities Reference

• Author: Ian B. Lee
• Pages: 59-73

• 59

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e General Trade and Commerce

Power aer the Securities Reference

Ian B. Lee

A. Introduction

In this comment, I argue that the Supreme Court of Canada’s

decision1 that the proposed Canadi an Securities Act2 exceeded

Parliament’s powers does not entail the more general conclu-

sion that Parliament lacks the power to enact national securities

legislation. The Court’s rejection of the proposed Act was driven

by two characteristics of that legislation that are not essential

to a federal securities regime: namely, that it was intended to

be “comprehensive” and that its stated objectives mirrored, for

the most part, the microeconomic objectives of existing provin-

cial legislation. A federal securities law not possessing these two

characteristics remains constitutionally available to Parliament,

under the same head of legislative power that could not, in the

Court’s opinion, sustain the proposed Act.

I acknowledge that such a law may not be politically feasible,

and I also make no claim that a parallel (i.e., non-comprehensive)

federal securities regime would be desirable as a matter of policy.

At least in the short term, such a regime would not achieve the

federal government’s avowed aim of reducing the fragmentation

which, in its view, characterizes the Canadian securities regula-

tory s ystem.

1 Reference Re Securities Act, 2011 SCC 66 [Securities R eference].

2 Order in Council PC 2010-667 (26 May 2010).