The Provinces' Competence over Securities Regulation in Canada: Taking Stock of the Supreme Court's Opinion

• Author: Stéphane Rousseau
• Pages: 279-289

• 279

 

e Provinces’ Competence over

Securities Regulation in Canada:

Taking Stock of the

Supreme Court’s Opinion

Stéphane Rousseau

A. Introduction

On 22 December 2011, the Supreme Court of Canada rendered

a landmark opinion in the Reference Re Securities Act.1 On the

question of whether the proposed Canadian Securities Act was

within the legislative authority of the Parliament of Canada, the

Supreme Court answered with a strong and unanimous “no.”

The opinion is a milestone in the debate on the possibility

(and desirability) of creating a national regulatory framework for

securities markets. The Court’s opinion arguably blocks the fed-

eral government’s project of creating a single scheme governing

the trading of securities throughout Canada.2 Nonetheless, com-

mentators quickly observed that “it’s not over yet”; they believe

that the decision still leaves open the possibility of establishing a

national regulator.3 More recently, in the 2012 Budget, the Minis-

ter of Finance stated, “Government is consulting with provinces



1 2011 SCC 66 [Securities Reference].

2 At the provincial levels, the Alberta and Quebec Courts of Appeal have

also ruled that the federal project was unconstitutional. See Québec

(Procure ure générale) c Canada (Proc ureure générale), 2011 QCCA 591;

Reference Re Securities Act (Canada), 2011 ABCA 77.

3 See e.g. Phillip Anisman, “It’s Not Over Yet” National Post (29 December

2011).