The judgment of the Supreme Court of Canada in the Reference re Securities Act 2011 SCC 66 has just been released. The opinion of the Court—a single judgment—finds, in sum, that:
This is not a case of a valid federal scheme that incidentally intrudes on provincial powers. It is not the incidental effects of the scheme that are constitutionally suspect; it is rather the main thrust of the legislation that goes beyond the federal power. . . .
The Securities Act as presently drafted is not valid under the general branch of the federal power to regulate trade and commerce under s. 91(2) of the Constitution Act, 1867.
In paragraph 132 (underlined in the online version at scc.lexum.org) the Court offers advice:
It is not for the Court to suggest to the governments of Canada and the provinces the way forward by, in effect, conferring in advance an opinion on the constitutionality on this or that alternative scheme. Yet we may appropriately note the growing practice of resolving the complex governance problems that arise in federations, not by the bare logic of either/or, but by seeking cooperative solutions that meet the needs of the country as a whole as well as its constituent parts.
This will be a serious blow to the federal government and, quite likely, to other legislation that walks close to the line of provincial powers, such as PIPEDA perhaps. It leaves Canada as one of the few countries in the world without a single, national act regulating securities.
This entry merely reports the fact of the release of the opinion and its conclusion. We’ll do a follow-up soon, collecting the views of commentators from around the country.