Constitutional Pariah

Reference re Senate Reform and the Future of Parliament

By Emmett Macfarlane

SERIES: Landmark Cases in Canadian Law

UBC Press

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.

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

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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