As you know, a lawyer is someone who can think of a thing or a concept without managing to think of the thing that is inextricably bound to it. That is what we are witnessing here. This act puts in train a process of selecting senators, and we are managing to think of the cabinet sitting there choosing a senator without at all thinking of the process that brought the name before them. It's ludicrous.
Is it legally wrong, though? Yes. The process in Bill C-20, if followed to the letter, will abridge specific constitutional provisions relating to age, relating to requirement, relating to representation. Secondly, the precise constitutional authority assigned to the cabinet to appoint a senate in its discretion is curtailed unconstitutionally by the limitation it has accepted through enacting and applying Bill C-20.
You can argue that it suffers no limitation by virtue of the operation of Bill C-20. It will make its decision independent of its enactment and operation and result of Bill C-20. But no one believes that is true. What is happening is that we are reshaping the way the Senate of Canada is to be formed in the future.
Professor Côté said over and over again, as clearly as could be, that when you reshape the way the Senate of Canada is formed, you are falling within paragraph 42(1)(b) and it would be unconstitutional.
You cannot extricate a process that operates inevitably in the exercise of a constitutional discretionary power and say that it doesn't operate in the exercise of that power. I do not believe the Supreme Court of Canada plays those mind games. For that reason, I think Professor Hogg is predicting this one wrong.