Reference Re Securities Act (Canada), 2011 ABCA 77 holds that Federal proposals for a national securities regulator are unconstitutional. The decision is a careful analysis of the current law regarding division of federal/provincial powers. It is useful reading when considering the scope of federal power generally.
One short passage deals with the structure of economic regulation under the Constitution:
The Structure of the Constitution Act on Economic Issues
[28] Any conclusion on the constitutional allocation of any particular jurisdiction should have regard to the overall structure of the Constitution Act. It has been recognized that the division of powers in the Constitution Act on economic subjects was designed to permit the provinces to develop their local economies in the way they choose: Canadian National Transportation Ltd. at p. 267; Consolidated Fastfrate at paras. 33, 39; Reference re Secession of Quebec, 1998 CanLII 793 (S.C.C.), [1998] 2 S.C.R. 217 at paras. 58, 66; R. v. Advance Cutting & Coring Ltd., 2001 SCC 70 (CanLII), 2001 SCC 70, [2001] 3 S.C.R. 209 at paras. 275-6.
[29] It is significant that banking, one of the four pillars of the financial sector of the economy, is specifically mentioned in s. 91. In 1867 there were concerns with the proliferation of local banks in the United States, and the express mention of banking indicates that this head of power would otherwise have fallen under "property and civil rights". Exclusion of the other three financial pillars of the economy from s. 91 is also significant. Likewise, the specific mention in s. 91 of other economic topics (such as bankruptcy and insolvency, bills of exchange, interest, patents, and copyrights) points to the width of the property and civil rights power, and the intended narrowness of the trade and commerce power.
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