Conceived as part of the UBC Press series Landmark Cases in Canadian Law, Emmett Macfarlane's Constitutional Pariah takes as its starting point the 2014 Supreme Court opinion Reference re Senate Reform—but the book is about far more than just one case.
Macfarlane's analysis of the opinion and its implications for constitutional change is presented in the context of the wider Senate reform debate. This makes it a book not just about the court and the Constitution, but also about Parliament, federalism and representation.
This becomes immediately clear in the first two chapters, which are more about the Senate than the court. Macfarlane discusses competing conceptions of the upper chamber's roles, including legislative review, the representation of propertied and regional interests, and minority representation more generally. These roles, he argues, are occasionally competing and often misunderstood, which has both instigated and frustrated Senate reform.
This leads directly into his review of past Senate reform attempts, which he argues failed “because reformers cannot agree on what the Senate should be” (54–55). Any change meant to address one aspect of the Senate has an impact on its other roles, undermining any consensus on a successful reform agenda. This argument echoes previous analyses of Senate reform (Docherty, Reference Docherty2002), but it serves as a necessary preamble to the core of Constitutional Pariah: an analysis of the 2014 Senate reference and its implications for the Senate and for constitutional change writ large.
Chapter 3 details the circumstances leading up to the reference, which was lodged by the Harper government in 2013. Spurred on by a growing Senate scandal—and the Conservatives’ long-standing support for Senate reform—the government submitted a series of questions that sought to establish the constitutional parameters for reform.
Macfarlane's analysis of the court's opinion in the following chapter is persuasive. In brief, the court slammed the door on most of the proposed reform agenda. It found any change to the “fundamental nature or role” of the Senate would require provincial approval through the general amending formula—which the Harper government hoped to avoid—and that abolition would require unanimous consent. Of the various proposed reforms, only abolishing the property requirement would be permitted without provincial approval—and then only outside Quebec.
It is here that Macfarlane's earlier analysis of the Senate comes into play. He argues that the court showed a “superficial” and inconsistent understanding of the Senate's roles—for instance, by finding that even lengthy term limits would require provincial consent. Not all the Harper government's proposed reforms could have been appropriately carried out unilaterally, but the court's resistance to virtually any of the proposed changes—notably term limits—was striking. So, too, was its lack of concern about removing the property requirement despite clear evidence that the protection of propertied interests was an intended role of the Senate.Footnote 1
Not only did the court constrain reform; it also failed to provide clear guidelines about the scope of the different amending formulas, leading Macfarlane to conclude that the decision was in that respect “a failure” (138). This leads to a broader conclusion about the opinion: that the court's “appeal to constitutional architecture, together with its general antipathy toward indirect methods of amending the Constitution, threatens to exacerbate Canada's constitutional stasis” (146).
Macfarlane is at his most convincing in his criticism of the court's constraints and the implications the decision has for future constitutional change. The limits of the book are most clearly seen in chapter 5—in part for reasons beyond the author's control.
Chapter 5 details the reformed Senate appointment process implemented by the current Liberal government, which sought to increase independence by reducing partisanship. Macfarlane details the institutional changes—which he himself helped craft (10)—but is too quick to dismiss critics who argue senators appointed under the new system are not living up to the promise of independence. He acknowledges, rightly, that the “real test of the non-partisan behaviour” of the Trudeau-appointed senators will come when the Liberal government is replaced (133)—but, at the same time, argues it is difficult to attribute the Trudeau appointees’ support for government legislation “to any partisan affinity” (160).
Whether partisan or ideological, the support of Trudeau-appointed independents for the government's agenda has justifiably raised concern—in part because partisan caucuses provide at least an indirect way to hold senators accountable via their elected colleagues in the House of Commons (Brodie, Reference Brodie2018: 152–53). Furthermore, there is evidence that Trudeau-appointed senators back government legislation at a higher rate than colleagues appointed by other prime ministers, regardless of caucus or partisan affiliation (VandenBeukel et al., Reference VandenBeukel, Cochrane and Godbout2021). This raises reasonable questions about the extent to which the Trudeau reforms genuinely increased Senate independence. No doubt this will be an area of further study as the reforms progress—which Macfarlane rightly acknowledges.
Constitutional Pariah is a readable and compact study with important insights into the development of both the Constitution and Parliament. One hopes it will be widely read—including by members of the court.
