The 2018 Pan-Canadian Securities Regulation Reference: Dualist Federalism to the Rescue of Cooperative Federalism
In 2018, the impact of Canadian federalism on securities regulation returned one more time to the Supreme Court of Canada. In its Reference re Pan-Canadian Securities Regulation, the Court had once more to clarify “who can do what” with regards to capital markets. But it was also tasked with assessing the normative instruments through which federal partners were attempting to act in a coordinated fashion. The Court’s advisory opinion offers a relatively predictable interpretation of the division of powers in economic matters, and more specifically, the scope of federal jurisdiction over “Trade and Commerce”. However, more significantly, the reference raised a number of fundamental questions about the dominant and competing conceptions of Canadian federalism, the role of courts in monitoring the behaviour of members of the federation, the legal status of intergovernmental agreements, and the fluid line dividing law and politics in the practice and theory of federalism.