What a steep threshold to get over.
With respect to two electorally legitimate houses coming to different conclusions on a measure, clearly that would pose a threat to the theory of responsible government and the fundamental constitutional requirement that the government be able to manage a legislative agenda in the legislative chambers.
I think the answer to this problem as we face it, and as other nations have faced it, is a set of conventions, perhaps conventions relating to committee negotiation or a joint committee to negotiate differences in bills, as they do in Washington. Perhaps there will be a convention that the failure of a government to manage a legislative agenda due to the intransigence of the Senate does not express lack of confidence.
There are a number of conventions that could evolve around how responsible government works in a bicameral legislature in which both houses are elected. These will evolve. I do not think this will be beyond managing.
I think there will be moments when it feels like we're close to a constitutional crisis, such as in Australia in 1975, but I do not think they will be frequent and beyond managing. In truth, as a nation we must all be aspiring to come to an age when we have democratically elected legislatures across the piece. So we should face that future.
On the second matter, there is a theological difference between Professor Hogg and us, I guess. Professor Hogg is a very well known and respected constitutional lawyer—and by the way, his view was echoed by Dean Patrick Monahan, his successor at Osgoode Hall, who has the same position. They are, with all the kindness I can muster in the world, well-known, black-letter constitutional lawyers. Other constitutional lawyers live by the spirit of the Constitution. They see the Constitution as representing an expression of where a nation is at a certain point in its narrative, and that sets a guideline that can drive the nation as it goes forward in terms of moral commitments and honourability.
The agreements made in 1867 and 1982 are agreements that we the people—and I know this is an attenuated conception of we the people—decided to live together this way, with these moments of mutual respect and these understandings of how power will be exercised. You cannot abridge these and maintain the integrity of the Constitution in the minds of Canadians. There's a spirit to the Constitution, and Professor Hogg fails to grasp it and its fundamental importance to Canada as a good state.