Shapray v. British Columbia (Securities Commission): Freedom of Expression and the Viability of Blanket Non-disclosure Provisions in Securities Regulation
In Shapray v. British Columbia(Securities Commission), the British Columbia Court of Appeal found that a blanket non-disclosure provision in the British Columbia Securities Act, which applies to any party under investigation by the British Columbia Securities Commission, to be an unjustifiable infringement of the applicant's freedom of expression under s. 2(b) of the Canadian Charter of Rights and Freedoms. On the one hand, Shapray can be said to represent an incremental re-tooling of constitutional values in favour of individual rights over collective, commercial interests. On the other hand, it could be characterized as mere constitutional housekeeping, in which pre-Charter legislation is reviewed against a contemporary standard. On either interpretation, Shapray strongly limits the powers of securities regulators to impose gag orders in British Columbia, a result which could potentially lead to similar decisions in other jurisdictions. With the benefit of these premises, we review both the British Columbia Supreme Court's and Court of Appeal's decisions. Specifically, we discuss two issues: first, what the reasoning of the court in Shapray means for other jurisdictions, with particular emphasis on the Ontario Securities Act; and second, the constitutionality of comparable provisions in the proposed Canadian Securities Act. Published in Canadian Business Law Journal, Volume 51 at 259.