The Paradoxical Presumption of Constitutionality

Abstract

This paper discusses whether the courts should employ a presumption of constitutionality in judicially reviewing legislation. The author argues that the presumption of constitutionality is a well-established principle of constitutional interpretation. However, in recent decades, the presumption has become paradoxical, in that it is simultaneously both alive and dead. The Supreme Court employs a strong presumption of constitutionality in the context of the division of powers, but has rejected the presumption of constitutionality where the Charter is concerned. The author argues that the presumption should apply equally to the Charter.

Keywords: constitutional law, deference, judicial restraint, presumption of constitutionality, Charter, Constitution

JEL Classification: K19