Constitutional Pariah

Reference re Senate Reform and the Future of Parliament

By Emmett Macfarlane

SERIES: Landmark Cases in Canadian Law

UBC Press

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The Canadian Senate has long been considered an institutional pariah, viewed as an undemocratic, outmoded warehouse for patronage appointments and mired in spending and workload scandals. After decades of debate about reform, in 2014 the federal government was compelled to refer constitutional questions to the Supreme Court relating to its attempts to enact senatorial elections and term limits.

Constitutional Pariah explores the aftermath of Reference re Senate Reform. In its first significant attempt to articulate the boundaries between key procedures in the constitutional amending formula, the Court ruled out major unilateral alteration of the Senate by Parliament. Ironically, the decision resulted in one of the most sweeping parliamentary reforms in Canadian history, creating a pathway to informal changes in the appointments process that have curbed patronage and partisanship. Emmett Macfarlane situates this incisive analysis within the context of the roles of the upper house, its evolving performance, and historical efforts at reform.

Despite reinvigorating the Senate, Reference re Senate Reform has far-reaching implications for constitutional reform in other contexts. Macfarlane’s sharp critique suggests that the Court’s nebulous approach to the amending formula raises the spectre of a frozen constitution, unable to evolve with the country.

This meticulous and comprehensive study will become a standard reference for political scientists, legal scholars, students, journalists, and a generalist audience interested in Canadian politics and governance.

Awards

2022, Commended - Donald Smiley Prize, Canadian Political Science Association

RELATED TOPICS: Canadian Politics, Constitutional Law, Law, Political History, Political Science

… [Macfarlane’s] book provides a clear and vigorous account of the last few decades of debates over the Senate, particularly the 2014 reference to the Supreme Court about what changes Parliament can make to the Senate without seeking constitutional amendments. Christopher Moore, author of Louisbourg Portraits: Life in An Eighteenth Century Garrison Town, Christopher Moore's History Blog

If there is a better book on the challenges of constitutional change in Canada, I have yet to see it. Richard Albert, Faculty of Law, University of Ottawa, Alberta Law Review

I encourage scholars to enter the conversation on the possibilities and limits of Senate Reform that Macfarlane has initiated with this dazzling book and to join the broader discussion on constitutional reform in Canada from perspectives in law, political science, and beyond. Richard Albert, University of Ottawa, Alberta Law Review

Centered around the 2014 Supreme Court of Canada decision Reference re Senate Reform (2014 SSC 32), this book goes beyond a simple discussion of the decision itself and sets the context through a study of the past, present, and future of the Senate... Macfarlane lets the topic bloom out around the decision and, in the end, leaves the reader with an excellent grounding in all things Senate. Emily Benton, University of Ottawa, Canadian Law Library Review

This is an important and gratifying work in the study of Senate reform, full of well-constructed arguments that are worthy of debate. Don Desserud, professor, political science, University of Prince Edward Island

An extremely impressive book from a very accomplished author. Constitutional Pariah will become the go-to reference whenever the role of the Senate in the national policy process is discussed. Paul Thomas, professor emeritus, political studies, University of Manitoba

Emmett Macfarlane is an associate professor of political science at the University of Waterloo. His research focuses on the intersection of governance, constitutional law, and public policy. He is the author of Governing from the Bench: The Supreme Court of Canada and the Judicial Role and is the editor of Constitutional Amendment in Canada and Policy Change, Courts, and the Canadian Constitution.

Introduction: The Making of a Landmark Case

1 The Senate’s (Unfulfilled) Roles

2 A Short History of Senate Reform

3 If at First You Don’t Succeed … The Harper Government and the Senate

4 The Decision

5 Informal Reform and a New Appointments Process: A Renewed Senate?

6 A Constitution in Stasis? Prospects and Problems for Future Constitutional Change

Conclusion: The Future of the Senate, Parliament, and Constitutional Reform

Notes; Select Bibliography; Index of Cases; Index

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