Calgary: The Frontier Centre for Public Policy released today A Return to Classical Federalism?: The Significance of the Securities Reference Decision.
In this policy study, Barry Cooper, professor of political science at the University of Calgary, analyses the Supreme Court of Canada’s (SCC) reference decision that setback the federal government’s quest to install a single security regulator. Opponents of the proposed national regulator identified Ottawa’s attempt as a deliberate intrusion into provincial jurisdiction and as a federal power grab. That the federally-appointed court unanimously ruled against the federal government was a surprise. Almost as surprising was to see the court’s ruling reach back to the country’s constitutional DNA, the division of powers established in the British North America Act of 1867 (now known as the Constitution Act, 1867).
Cooper analyzes the historical context for this important decision, the reasons for judgment and most telling of all the politics that underlay both Ottawa’s attempt to take over an area of provincial jurisdiction as well as the implications of the failure in court. He shows that the Court’s decision conforms to the notion of classical federalism, whereby the central government and the provinces have reasonably clear areas of jurisdiction and responsibility.
“Given that classical federalism has been out of favour in Canada since at least the end of World War II, this is also a surprising development,” Professor Cooper writes. The court decision strengthens the classical notion of federalism in that it reaffirms the original constitutional division of powers. One of the many benefits of a properly balanced federal constitution is the limitation of the powers of government, a fundamental pillar of liberal democratic values. As Cooper shows, Ottawa’s case had little to do with laws and much to do with politics and a desire to expand federal power. The decision may have future influence on areas of policy that are clearly delineated jurisdictions in the 1867 constitution such as natural resources, with ramifications for environmental policy.
Whether the Supreme Court of Canada or the Government of Canada will continue in the redirected course to which the court has pointed, of course, remains to be seen. Nevertheless, Cooper argues, it is unquestionably “a step in the right direction.”
Download a copy of A Return to Classical Federalism?: The Significance of the Securities Reference Decision HERE.
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ABOUT THE AUTHOR:
Barry Cooper, B.A., A.M., Ph.D., FRSC, is a fourth generation Albertan. He was educated at Shawnigan Lake School, the University of British Columbia and Duke University. He taught at Bishop’s University, McGill, and York University before coming to the University of Calgary in 1981, where he has since taught classical and contemporary western political philosophy. Cooper’s other area of continuing interest has been Canadian politics and public policy. Here he has brought the insights of political philosophers to bear on contemporary issues, including the place of technology and the media in Canada, the on-going debate over the constitutional status of Quebec, and the status of Canadian defense and security. He is the author, editor, or translator of 30 books and has published over 150 papers and book chapters. He writes a regular column in the Calgary Herald.