On December 22, 2011, the Supreme Court of Canada released its
landmark advisory opinion in the Reference Re Securities
Act, 2011 SCC 66. In a decisive ruling, the Court unanimously
held that the proposed federal Securities Act, an omnibus
statute purporting to regulate all aspects of trading in
securities, was "not valid". With these two critical
words, the Court seriously impaired the federal government's
regulatory ambitions and strongly reinforced the prevailing
constitutional order.
A brief survey of the historical context is helpful to
understanding the scope and significance of this reference case.
Since the time of Confederation, the provinces have regulated
securities by regulating contracts and property matters within
their boundaries and those engaged in the securities industry.
Consistent with this regulatory approach, trading in securities has
been regarded as a local concern subject to provincial jurisdiction
over property and civil rights [section
