I believe the Supreme Court would pay close attention to the conventions and how they affect this bill.
This relates to some of the questions from Mr. Reid and Mr. Comartin earlier. I think one of the issues is whether the court would simply deal with the black letter of the law, or would it expand it to public expectations and constitutional conventions? My belief is that the Supreme Court would treat this as one of those areas where it cannot simply take the black letter of the law; it must look at the context and the effects of it. It would therefore look at the public expectations and whatever conventions would or would not operate around that area of law.
I mentioned the Quebec secession reference earlier, where in terms of the black letter of the law, the Supreme Court could have, and perhaps should have, said Quebec does not have a right to separate in international and domestic law, period. But they went on to say something else. I think the same thing would apply here. There are some areas of law where you cannot simply stop with the black letter of the law and the Supreme Court would talk about the expectations of the public and what conventions would relate.
In some respects, the court in the Quebec secession reference created a brand-new convention. Everyone now believes the federal government has an obligation to negotiate separation if a clear majority votes in favour of it. I would say that's now one of our conventions of the Constitution. We don't need a referendum to tell us that is in fact a constitutional obligation on the government; this was something authored by the Supreme Court of Canada, quite curiously.
My belief is that the Supreme Court would take this area of law with respect to the Senate, look at it in the same kind of political context, and make some very strong statements about the obligations of the federal government and their relations to provincial governments in dealing with the central institution of this federation.