This, in my view, is clearly unconstitutional. It's unconstitutional and violates criterion number two, because it seeks to amend the Constitution Act in an area that regards the principle of proportionate representation, which is something that can be changed only by means of what is known as a 7-50 amendment. It seeks to do so using the wrong amending formula, the section 44 amending formula. In our Constitution, through sections 38 through 49, if you count all the sections that deal with the technicalities of it, we have a variety of amending formulas.
Subsection 42(1) of the Constitution Act, 1982, says: “An amendment to the Constitution of Canada in relation to the following matters may be made only in accordance with subsection 38(1)...”, which is a reference to the so-called 7-50 amending formula. then it has a series of different items, one of which is “(a) the principle of proportionate representation of the provinces in the House of Commons prescribed by the Constitution of Canada...”.
There is a specific reference in the preamble to this bill to section 44 justifying the use of the section 44 amending formula. I suppose that in theory a preamble is not part of the law per se, and a preamble that states something that's inaccurate need not invalidate the law itself, but a further problem is that the measure is presented as a bill, which is how section 44 amendments are presented to the House of Commons.
If this were an attempt to amend the Constitution with all the same substantive results, but it were presented as a motion, it would then be in order and would come into effect if seven provinces representing 50% of the population of Canada enacted it through their provincial legislatures within a three-year window. That's how we deal with section 38 amendments.
But it's simply done in the wrong form, completely in the wrong form, and that makes it irretrievably a violation of criterion number two. On that basis, it ought to be rejected.
I have more a detailed argument to present, but let that be the starting point.