Notwithstanding that there are good reasons to argue that the power over “general regulation of trade” cannot serve as a basis for the recognition of a federal authority to regulate the securities market, the Supreme Court of Canada will most probably resort to it as a peg on which to hang the central government’s securities hat. The challenge the high court will the n face will be in establishing limits to the reach of such a power. After underlining the fragile empirical basis of many arguments in favour of a unified federal securities regime, this article describes how the Canadian division of powers has been judicially apprehended in recent years, particularly in commercial and economic matters. It the n discusses how the current understanding of such division of powers constitutes a next to insurmountable obstacle to the preservation of an unassailable provincial sphere of intervention over securities if, indeed, the Supreme Court invokes the federal power over “general regulation of trade” as the basis of a valid federal intervention in that field. Finally, this article examines how a true federal spirit might inspire a less Manichean approach to the regulation of securities. Indeed, if the federal structure of the Canadian state and, paradoxically, the divided nature of our common market, are to be taken seriously into account, the challenge lies in allowing both the central government and the provinces a legitimate and guaranteed space in the regulation of securities.
"“Please, Draw Me a Field of Jurisdiction”: Regulating Securities, Securing Federalism."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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