The Presumption of Constitutionality

Abstract

Constitutional litigation in Canada is being transformed from its legacy of abstract jurisdictional conflicts. There is a new emphasis on completeness of an evidentiary record to narrow and crystallize constitutional issues with relevant facts, policies and opinions. An important engine of this transformation is the presumption of constitutionality. As applied in an evidentiary sense the presumption of constitutionality requires attacking counsel to amass a fulsome evidentiary record to support the case. Failure to do so will result in all ambiguous questions of fact being resolved in favour of the government. This will frequently be fatal to the attacker’s case.The goal of this transformation is construction of a full, useful and concrete factual record; the rationale is precision in the presentation and resolution of constitutional issues, one important means is the presumption of constitutionality used in an evidentiary sense.The presumption of constitutionality doctrine is a self-effacing technique. Its greatest significance lies in the requirement for completeness and crystallization of constitutional issues. As constitutional issues achieve adequacy and fullness in presentation, the presumption will diminish in importance. It will only have succeeded completely in its technical mission at the moment when need for it disappears.