The 'free the beer' ruling and the Supreme Court's record of putting the brakes on change - Macleans.ca

The ‘free the beer’ ruling and the Supreme Court’s record of putting the brakes on change

On stock market regulation, Senate reform, even appointments to its own bench, the top court has disappointed those unhappy with the status quo

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The Supreme Court of Canada (THE CANADIAN PRESS/Sean Kilpatrick)

Today’s Supreme Court of Canada decision allowing provincial governments to keep on putting up barriers to beer being shipped across provincial borders is only the latest that comes as a serious let-down to many who were hoping for a ruling from the top court that would shatter the status quo.

In a Tweet this morning, University of Ottawa law professor Craig Forcese captured that tone of disappointment when he grouped together today’s ruling with three other decisions that, he said, amount to “Canada, preserved in amber.” The three earlier cases listed by Forcese were:

  1. National securities regulation. In 2011, the court rejected the Conservative government’s bid to create a national securities regulator. The court didn’t dispute the valid reasons behind the reform idea. But it found that provinces, under the Constitution, have jurisdiction over contracts and property matters and have long regulated securities. The federal government failed to make its case that something about trading stocks and bonds and derivatives has changed so fundamentally that Ottawa must now step in
  2. The Senate reference. In 2014, then prime minister Stephen Harper asked the court if he could reform the Senate. His biggest ask was approval for unilaterally implementing so-called “consultative” elections for senators. The judges said he would need to first gain the consent of least seven provinces with 50 per cent or more of the population—the “seven-and-50” formula for constitutional amendments. Since gaining that level of provincial assent would be a Meech Lake-scale undertaking, that was the end of that.
  3. Marc Nadon’s appointment. In 2014, Harper tried to appoint Nadon, a Federal Court judge, to fill a Quebec vacancy on the Supreme Court. But Nadon didn’t fulfill the longstanding requirement that Quebec appointees come from the Quebec Superior Court, the Quebec Court of Appeal, or be current members of the Quebec bar. The court ruled that its own composition is constitutionally protected, and so Nadon’s appointment wasn’t allowed. Experts saw implications for the institutional status of the court that went well beyond the Nadon controversy.

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