Emmett Macfarlane

Rights and Parliamentary Systems in Canada and Beyond brings together political scientists and legal scholars to explore rights and their limitations, along with the governmental and legislative processes affecting them, within Canada’s parliamentary system. It also examines how these elements shape broader institutional relationships under the Canadian Charter of Rights and Freedoms and in comparative perspective. This interdisciplinary volume offers valuable, in-depth analyses of timely issues, cases, and controversies involving rights and institutional dynamics. The book employs an array of methods, including legal analysis, qualitative case studies, content analysis, legal theory, research interviews, and policy analysis. With a forward-looking perspective, Rights and Parliamentary Systems in Canada and Beyond investigates how rights-based processes influence specific policies and offers new insights into the framing of rights, including administrative law and Aboriginal treaty rights during the COVID-19 pandemic. It also explores how aspects of parliamentary democracy affect governments, legislators, and the public. The book ultimately reveals how the institutional relationships at stake operate to protect – or fail to protect – rights in relation to government policy objectives.

Rights and Parliamentary Systems in Canada and Beyond brings together political scientists and legal scholars to explore rights and their limitations, along with the governmental and legislative processes affecting them, within Canada’s parliamentary system. It also examines how these elements shape broader institutional relationships under the Canadian Charter of Rights and Freedoms and in comparative perspective. This interdisciplinary volume offers valuable, in-depth analyses of timely issues, cases, and controversies involving rights and institutional dynamics. The book employs an array of methods, including legal analysis, qualitative case studies, content analysis, legal theory, research interviews, and policy analysis. With a forward-looking perspective, Rights and Parliamentary Systems in Canada and Beyond investigates how rights-based processes influence specific policies and offers new insights into the framing of rights, including administrative law and Aboriginal treaty rights during the COVID-19 pandemic. It also explores how aspects of parliamentary democracy affect governments, legislators, and the public. The book ultimately reveals how the institutional relationships at stake operate to protect – or fail to protect – rights in relation to government policy objectives.

Legislating under the Charter explores how governments and Parliament justify limitations on rights when advancing laws that raise rights concerns or when responding to judicial decisions under the Canadian Charter of Rights and Freedoms. Through an analysis of legislation concerning criminal justice policy, the approval of new safe consumption sites, sex work, and medical assistance in dying, the book provides a detailed analysis of the extent and nature of parliamentary deliberation about rights, the extent to which government initiatives are properly scrutinized, and the broader institutional relationships under the Charter. The authors draw from a host of qualitative data, including research interviews and examination of judicial decisions, various bills under study, Hansard debates from the floor of the House of Commons, committee and Senate scrutiny of legislation, bureaucratic advice and Charter statements by the department of justice, and news media coverage. The book offers a set of concrete reform proposals to improve the transparency and accountability of executive and bureaucratic vetting processes, and to strengthen the role of Parliament in upholding constitutional values and holding the government to account. In doing so, Legislating under the Charter contributes to the broader comparative scholarship on models of judicial review, morality policy, policy change, and constitutionalism.

Legislating under the Charter explores how governments and Parliament justify limitations on rights when advancing laws that raise rights concerns or when responding to judicial decisions under the Canadian Charter of Rights and Freedoms. Through an analysis of legislation concerning criminal justice policy, the approval of new safe consumption sites, sex work, and medical assistance in dying, the book provides a detailed analysis of the extent and nature of parliamentary deliberation about rights, the extent to which government initiatives are properly scrutinized, and the broader institutional relationships under the Charter. The authors draw from a host of qualitative data, including research interviews and examination of judicial decisions, various bills under study, Hansard debates from the floor of the House of Commons, committee and Senate scrutiny of legislation, bureaucratic advice and Charter statements by the department of justice, and news media coverage. The book offers a set of concrete reform proposals to improve the transparency and accountability of executive and bureaucratic vetting processes, and to strengthen the role of Parliament in upholding constitutional values and holding the government to account. In doing so, Legislating under the Charter contributes to the broader comparative scholarship on models of judicial review, morality policy, policy change, and constitutionalism.

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. 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, which barred 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. 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.

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. 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, which barred 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. 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.

Despite the Supreme Court of Canada's crucial role in the country's legal system, many Canadians are in the dark about the inner workings of this institution. In Governing from the Bench, Emmett Macfarlane draws on interviews with current and former justices, former law clerks, and other staff members of the court to shed light on the institution's internal environment and decision-making processes. Challenging dominant theoretical and methodological approaches that fail to examine individual or structural forces that affect the court's decisions, he explores the complex role of the Supreme Court as an institution; exposes the rules, conventions, and norms that shape and constrain its justices' behaviour; and situates the court in its wider governmental and societal context. At once enlightening and engaging, Governing from the Bench is a much-needed and comprehensive exploration of an institution that touches the lives of all Canadians.

Despite the Supreme Court of Canada's crucial role in the country's legal system, many Canadians are in the dark about the inner workings of this institution. In Governing from the Bench, Emmett Macfarlane draws on interviews with current and former justices, former law clerks, and other staff members of the court to shed light on the institution's internal environment and decision-making processes. Challenging dominant theoretical and methodological approaches that fail to examine individual or structural forces that affect the court's decisions, he explores the complex role of the Supreme Court as an institution; exposes the rules, conventions, and norms that shape and constrain its justices' behaviour; and situates the court in its wider governmental and societal context. At once enlightening and engaging, Governing from the Bench is a much-needed and comprehensive exploration of an institution that touches the lives of all Canadians.