I'm not interested in saying that this bill is unconstitutional because it breaches convention. I'm interested in saying it breaches the Constitution because it is illegal.
Those lawyers who say this is just the Government of Canada--and the House of Commons and the Senate, if it passes--doing indirectly what it cannot do directly, with respect, seem to me to be people who have not read the secession reference, who have not read Sparrow, who have not read Oakes, who have not read Haida Nation. Are they reading the Supreme Court of Canada?
The Supreme Court of Canada isn't interested in what people can do indirectly when they can't do things directly. The Supreme Court of Canada for 20 years has been trying to preserve the constitutional integrity of this nation through standing up for the structures that were put in the Constitution and ensuring that they are honoured and not eroded and not bypassed. We are not living in a jurisprudential age in which we are parsing small technical differences; we are trying to preserve a constitutional arrangement and trying to get constitutionally mandated consent for the restructuring.
It happened, if at all, initially in the 1980 Senate reference. At that time the Supreme Court of Canada said that when you change an institution of the national government as fundamental as that, you've got to take account of the interests that are constitutionally recognized that are being affected by this and get their participation.
These are rules of law.