Quebec separatists say a move to ask the Supreme Court to decide whether the federal government can create a national securities regulator is evidence that when it comes to disputes over provincial jurisdiction in Canada, the dice are loaded in Ottawa's favour.
The Harper government's goal of creating a national body to regulate stock markets and investigate stock fraud is opposed by Quebec's federalist Liberal government and by Alberta as a federal intrusion into their jurisdiction over property law.
But Ottawa's tactic of asking the courts to decide if it has the constitutional power to do it is a trickier political issue in Quebec than in Alberta, where provincial Finance Minister Iris Evans declared it a "prudent" step to ask the Supreme Court for an opinion before a national regulator goes ahead.
Bloc Québécois Leader Gilles Duceppe warned yesterday that sovereigntists in Quebec won't see the Supreme Court as a neutral arbiter of what should be federal power and what should be left to the provinces.
"We've always said that the Supreme Court has the same kind of inclination as the Tower of Pisa - it's always on the same side," Mr. Duceppe said. "It's another example that the best way to the future of the Quebec nation is to have our own country."
For Jean Charest's provincial government in Quebec, that creates a political squeeze. The blessing of the Supreme Court for Ottawa's national regulator might quiet opposition in another province, but Mr. Charest's government knows the opposition Parti Québécois would use it as an example of how federal institutions combine to erode Quebec's powers.
After promising on Friday that it would respond quickly to the Supreme Court reference initiative, the Quebec government went into retreat yesterday.
Last Friday, a spokesperson for Premier Jean Charest said Quebec was anxious to make its case public, and offered to have key ministers available for comment at the beginning of the week. However, Intergovernmental Affairs Minister Claude Béchard was unavailable for comment yesterday, as was Finance Minister Raymond Bachand. Both were said to be preparing a reaction to be made public Tuesday.
Ms. Evans, Alberta's Finance Minister, said that her province is in talks with Quebec to align strategies, but added that it's "prudent" for Ottawa to ask the Supreme Court to weigh in.
"Hopefully, the Supreme Court of Canada will look at this as an infringement to our jurisdiction," Ms. Evans said. "… This could set a precedent for federal intrusion into other areas. We do not accept that."
The Supreme Court will probably not come up with an answer for a year - Ottawa says it will formally ask the court to review the question in the spring - but when it does, its opinion could have far-reaching implications for the economic powers of Canadian governments. Asking whether Ottawa can regulate securities nationally means asking how much the federal government can use its seemingly broad power over "commerce" to step into provinces' jurisdictions in setting property and civil law.
Benoît Pelletier, a former intergovernmental affairs minister in Mr. Charest's government and a constitutional law professor at the University of Ottawa, said that while it's wise to ask for a Supreme Court ruling if Ottawa insists on going ahead, he hopes the justices tread lightly, and not too far into limiting the provinces' economic powers.
If the Supreme Court does decide Ottawa has the constitutional power to create a national securities regulator, Quebec's government may have to negotiate a role in it, even if federal Finance Minister Jim Flaherty allows provinces to opt out, Mr. Pelletier said in an interview. Quebec businesses would not want to be the only ones dealing with a different regulator than their counterparts in the rest of the country, or to be forced to deal with two.
"The moment the federal government sets up a pan-Canadian institution with pan-Canadian regulation, the province that tries to go its own way will face enormous pressure from its own financial markets," he said.
With reports from Rhéal Séguin in Quebec City and Dawn Walton in Calgary