Understanding 'Trade as a Whole' in the Securities Reference

University of British Columbia Law Review, Vol. 46, No. 1, 2013

19 Pages Posted: 11 Mar 2013 Last revised: 20 Mar 2013

See all articles by Malcolm Lavoie

Malcolm Lavoie

University of Alberta Faculty of Law

Date Written: March 9, 2013

Abstract

In this comment, the author seeks to situate the Securities Reference within the body of jurisprudence dealing with Parliament’s general trade and commerce power. With this recent decision, the Supreme Court of Canada (SCC) has placed a renewed emphasis on whether a matter can be classified as relating to “trade as a whole.” In doing this, it has moved away from the more policy-oriented approach represented by the final two factors of the City National Leasing test, and towards a more conceptual approach. Yet given the Court’s reliance on the concept of “trade as a whole,” a clearer understanding of what that entails is required. The author argues that, in the light of the Securities Reference, the general trade and commerce clause gives the federal government the power to regulate the “emergent properties” of the national economy. This refers to economic phenomena that are best understood as being qualitatively distinct from, and irreducible to, the individual transactions, industries and local markets that give rise to them. Such phenomena are thus inextricably linked to trade as a whole, rather than trade in any particular local context.

Keywords: Constitutional law, Federalism, Securities regulation

Suggested Citation

Lavoie, Malcolm, Understanding 'Trade as a Whole' in the Securities Reference (March 9, 2013). University of British Columbia Law Review, Vol. 46, No. 1, 2013, Available at SSRN: https://ssrn.com/abstract=2230899

Malcolm Lavoie (Contact Author)

University of Alberta Faculty of Law ( email )

Law Centre (111 - 89 Ave)
University of Alberta
Edmonton, Alberta T6G 2H5
Canada

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