It looks like the federal government is finally getting serious about the creation of a national securities regulator. Let’s hope it also recognizes that improving the oversight of Canada’s financial markets will take much more than simply changing the name on the door.
The Department of Justice has decided to ask the Supreme Court of Canada to rule on the question of whether the federal government has the constitutional authority to implement a regime of securities regulation. This comes as good news, as it signals that the feds are finally committed to resolving this issue.
It seems fairly likely that the government can claim jurisdiction. Back in 2003, the Wise Persons’ Committee secured three legal opinions, all of which essentially found that the feds could seize that ground. Now, the government is asking the highest judicial authority to confirm that opinion.
Securing such an assurance is crucial — particularly, with three provinces (Quebec, Alberta and Manitoba) signalling that they aren’t buying in. But perhaps more important than passing a procedural hurdle is the fact that Justice’s move indicates that the feds are determined to see the concept of a national regulator through.
Absent a unanimous decision by the provinces to give up their authority over securities regulation, achieving a national regulator was always going to require some sort of constitutional challenge, and no previous government has been willing to go down that road. By taking this step, the feds are now demonstrating that they are willing to stand up to a little provincial resistance.
The bigger question is whether they are also prepared to do what it will take to improve securities regulation in Canada.
Creating a national regulator should eventually solve a few problems, such as reducing complexity, eliminating duplication and giving Canada a single voice on the increasingly important international stage. But a national regulator won’t, by itself, fix all of the system’s ills. It won’t improve enforcement, speed rule-making or enhance regulatory accountability.
Moreover, even the sorts of improvements that should be achievable in a more streamlined regulatory structure will not be automatic. The transition to federal jurisdiction, if it happens, will be a complex legal and logistical chore.
Claiming jurisdiction is going to be the easy part. The hard part is everything that comes after.
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