The Supreme Court of Canada’s Federalism as Expressed in the Securities Reference

Abstract

This paper is about the kind of federalism expressed in the Supreme Court of Canada's opinion in the Securities Reference. The justices unanimously determined that the federal government's proposed securities legislation was, in fact, a “wholesale takeover” of securities regulation, not justified by the arguments of the federal solicitors (Reference Re Securities Act, 2011 SCC 66). Thus, it is ultra vires of the government of Canada. This opinion of the justices is important not only because of its treatment of the federal trade and commerce power but also because of its references to the nature of Canadian federalism. In a nutshell, the justices came down strongly in support of what they called “cooperative federalism.” However, they did not offer a lengthy discussion of what precisely they meant by cooperative federalism nor did they venture into a consideration of the implications of their preferred model of federalism.