The Art and Science of Constitutional Legislation

Much of the existing Canadian literature on deference focuses on courts. What remains underexplored is how the Parliamentary process and executive policy design and constitutional review might inform the Court’s deference analysis. Drawing on the field of Gesetzgebungstheorie, or legisprudence, this paper considers whether deference analysis should be influenced by parliamentary work, including travaux préparatoires, evidentiary processes in committee, executive legal opinion, and legislative revision and review. We argue that good legislation in the sense of legislation that both passes constitutional muster and furthers constitutionally recognized values deserves deference by the courts; therefore, courts are justified in taking a deferential approach when reviewing good legislation. We posit that Gesetzgebungstheorie may assist in identifying processes and praxis that are more likely to bring about good legislation.