We’re all exhausted up here in Ottawa. We are so busy telling you whether there will be an election (Yes!) (No!) (SO EXCITING) that we sometimes don’t notice things. Sometimes the government doesn’t mind our not noticing, and it plays little tricks to encourage the not noticing. So on a Friday afternoon the government announced it was putting a question to the Supreme Court of Canada. Friday afternoons are an excellent time to say things if you don’t want them noticed. Yet it is such a rare thing for a government to put a question to the Supreme Court that some of us reported it this time, even though it had happened on a Friday afternoon. All the same, by Monday most of us had forgotten it had even happened, because we needed to spend more time wondering whether there will be an election (Yes!) (No!) (SO EXCITING).
The question the Harper government has put to the Supremes is whether the federal government has the power to establish a national securities regulator, a body for writing and enforcing the rules around transactions like stock trades. The question really is whether Canada will provide a single regulatory climate for investors, or a patchwork of different ones.
In the best courtroom manner, the Harper Conservatives are taking care to ask a question to which they already know the answer: of course Ottawa has the power to establish a national securities regulator. Lots of countries establish national securities regulators. Investors love them, because they only have to file paperwork once. Canada’s 1867 Constitution is pretty clear on the matter, allocating to Ottawa the right to regulate “trade and commerce.” But provincial premiers hate the idea of a national regulator, because each of them gets to run a provincial regulator with its own rules. When they aren’t jealously guarding their constitutional jurisdictions against federal intrusion, provincial premiers are always happy to intrude into federal jurisdictions. And premiers seem to like living in a country where investment across provincial borders is as complex and expensive as possible.
Or they used to. More and more provincial governments have begun to see things Ottawa’s way. And by “Ottawa’s,” I mean both the federal Conservatives and the federal Liberals, because the Chrétien and Martin governments used to make wistful noises about wanting to establish a national securities regime too. By now only Alberta, Manitoba and Quebec are resisting federal Finance Minister Jim Flaherty’s project for a national regulator. Alberta politicians are fond of firewalls, it seems. Manitoba seems simply to be slow making up its mind (its finance minister, Greg Selinger, just replaced Gary Doer as the province’s premier). Quebec is a fantasyland, of course. Once the Supremes rule that federal jurisdiction is federal jurisdiction, Quebec and Alberta won’t have a leg to stand on. Even then the Harper government won’t force them to close their little local securities regulators down. Investors will take care of that by declining to invest in any jurisdiction that tries to snub the national regime. The feds don’t have to challenge provincial “rights.” They merely have to assert their own. The logic of a larger market will do the rest.
So in some ways this whole business is a foregone conclusion. But there’s still a lot at stake. The Supremes will find themselves tempted to draw some sweeping conclusion about the nature of federal responsibility for the economy, and the limits of provincial responsibility. These are thorny questions. Previous prime ministers were reluctant to tackle them, which is why Paul Martin and Jean Chrétien and Brian Mulroney all declined to pick the fight with the recalcitrant provinces that Harper is now picking.
So one of the most interesting things about this whole business is that Harper persists. He’s happy if we don’t notice, which is why his government made its announcement on a Friday afternoon. The Prime Minister has always been comfortable doing his hardest playing in the corners where the referee isn’t looking.
The consummate failure of the opposition parties to sustain and deliver a coherent analysis of this government that rises above “He’s so mean” leaves Harper plenty of room to advance his agenda. With two projects, the securities regulator and the attempt to secure free trade with Europe, Harper is trying to strengthen the Canadian economic union. With a succession of other projects—his abandonment of state-run child care in favour of per-child cash benefits; his lack of interest in higher education; his eagerness to underwork his health minister and his intergovernmental affairs minister (go ahead, name either one)—he is weakening the social union. The Canada he is building, deliberately and with little scrutiny or real opposition, has a stronger national market and a weaker national vision. I’m sure he would defend that project eloquently if pressed. His opponents seem disinclined to press him.
One more thing. You can sure tell the difference between Harper when he wants something done and Harper when he doesn’t. Contrast the methodical advancement of the securities-regulator project with the Prime Minister’s monumental incuriosity on the treatment of Afghan detainees. A report on prisoner abuse bounced all over Ottawa but somehow never made it to the desk of any minister with power to do anything about the alleged abuse. A commission investigating the cases of abuse that did arise has been requesting documents from the Harper government, in vain, for over a year. With every action and every stubborn inaction, Stephen Harper continues to reshape this country. One day we’ll all look back and wonder how we missed it while it was happening.