Andrew Bernstein Says SCC Decision is "Good News for Co-Operative Federalism"

November 14, 2018

Partner Andrew Bernstein told The Lawyer’s Daily the Supreme Court of Canada sent a message saying “legislatures can delegate any power except the power to legislate” in its unanimous decision in Attorney General of Canada, et al. v. Attorney General of Québec.

The Lawyer’s Daily reported the SCC’s decision on November 9 said the constitution of Canada “authorizes pan-Canadian securities regulation by a single national securities regulator.” The decision consolidates provincial and territorial securities regulators.

Andrew told The Lawyer’s Daily a legislature cannot by agreement allow some other legislature to preclude it from making legislation.

“But any power it can delegate to its own regulatory authorities, it can delegate to a ‘co-operative’ regulatory authority,” he said.

“This is good news for co-operative federalism as it allows institutions to be set up that make uniform regulations.”

He also said the SCC clarified agreements by the executive to bind the legislature saying they are not unconstitutional.

“They are simply ineffective — that is provinces can enter into them and abide by them if they like, but if the legislature ultimately tries to overrule the agreement by legislation, it can do so.”

Andrew has previously spoken with media about this topic.

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