The Securities Reference: The Ghost of Political Representation Comes Knocking at Federalism's Door

Abstract

The Securities Reference is yet another example of the Supreme Court of Canada’s intent, iterated many times these last years, to require of the federal and provincial levels of government that they settle federalism disputes politically rather than judicially. As I will try to argue, the Court’s repeated invocation of the virtues of “cooperative federalism” might stem from its realization that the centripetal thrust of parliamentary government has reached such a level that, if unchecked, it could dramatically accelerate the centrifugal dynamics that lies at the heart of federalism. Indeed, the Court might be sending a subtle message: it will no longer ignore that, behind “governments,” there hides in fact all-powerful federal and provincial executives, unwilling to consult or discuss, and sometimes perched on very flimsy popular supports; executives that wish to gain as much power as they can acquire.Our political system’s inability to adequately represent the citizenry is not new. However, the Charter has highlighted the citizen’s agency and has therefore given representation issues a new patina. Federalism has not been spared the impact of this cultural transformation placing individuals instead of governments at the Canadian polity’s epicenter. To paraphrase David E. Smith, people as well as politicians are now caught in federalism’s web. The legitimacy of our federal institutions, and more precisely their inability to serve as a forum for the resolution of interregional and national-regional conflicts, might therefore explain the Court’s unwillingness to uphold ambitious legislative federal programs. Especially so, when the latters’ primary ground of legitimacy is their having been imposed by an all-powerful executive, disdainful of consultation and discussion, and whose political base is less than 40% of the popular vote. Unfortunately, parliamentary government also buttresses the power of provincial kinglets, the latter reinforcing their own legitimacy by pointing to the federal parliament’s inability to express, let alone to take into account, regional preferences. All puffed up by their false claim that, as majority governments, they speak for each and everyone of their constituents, they demand of Ottawa nothing short of an abdication at the intergovernmental negotiation table. The outcome of these fights to the death between federal and provincial bulls — or rather bullies — might not, however, be the Court’s hoped for cooperation. Issues of representation must be settled if a federal spirit is ever to surface in Canada.