The Supreme Court of Canada today began hearing the reference case submitted by the federal government regarding the constitutionality of the proposed federal Securities Act. As we've discussed in previous blog posts, the Courts of Appeal of both Alberta and Quebec have ruled that the proposed Act is outside the jurisdiction of the federal government.
The hearing began this morning with submissions by counsel for the Attorney General of Canada, who argued that the proposed Act met the General Motors test (as expanded in Kirkbi) for determining whether there is a valid exercise of Parliament's general trade and commerce power under the Constitution Act, 1867. Essentially, the federal government argued that rather than focusing on a particular industry, this case impacts the economy as a whole. The Justices, however, were determined in their questioning, challenging federal counsel to explain how their arguments could withstand the fact that the provinces already work (relatively harmoniously) to regulate the space.
The afternoon saw submissions by counsel for Quebec and Alberta, who argued that the proposed Act is, in pith and substance, directed at the regulation of securities, which falls within the scope of property and civil rights under the Constitution Act, 1867. Quebec and Alberta also argued that the double-aspect doctrine did not apply in this case as the proposed Act has virtually identical subject matters, purposes and aspects as existing provincial and territorial securities regulatory legislation.
The hearing, which is being live-streamed on the Supreme Court website, will pick up tomorrow with submissions of interveners at 9:00 a.m. For live updates during the hearing, see our Twitter feed @Cdn_Securities.