Please write an essay evaluating whether the Supreme Court’s decision preventing the federal government the power to implement the Securities Act under the trade and commerce was correct in law?

| May 28, 2014

In 2010, the Government of Canada tabled the proposed Canadian Securities Act, which would have created a national securities regulator. The proposed Act was built on provincial securities regulation and would have harmonized existing legislation in the form of a single statute. It proposed significant changes in terms of governance, adjudication, financial stability, and regulatory and criminal enforcement, and provided a wide scope of authority to regulate financial instruments and participants in capital markets.

The Government of Canada referred the proposed Act to the Supreme Court of Canada for its opinion and essentially asked the following question: Is the proposed Canadian Securities Act within the legislative authority of the Parliament of Canada? The Supreme Court responded to that question in Reference re Securities Act, 2011 SCC 66 and found that the Securities Act as presently drafted was not valid under the general branch of the federal power to regulate trade and commerce under s. 91(2) of the Constitution Act, 1867.

Please write an essay evaluating whether the Supreme Court’s decision preventing the federal government the power to implement the Securities Act under the trade and commerce was correct in law? In particular, compare the approach of our Supreme Court to the trade and commerce power in the Constitution Act, 1867 with the approach of the United States Supreme Court to the American trade and commerce power. Are there any useful lessons in the American interpretative experience that the Canadian Supreme Court should have applied in this Reference? Please fully explain your position within the terms of the relevant Constitutional case law.

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