The 'Basic Bedford Rule' and Substantive Review of Criminal Law Prohibitions Under Section 7 of the Charter

Abstract

The absence of justification for the Supreme Court of Canada’s framing of the objective of the assisted suicide and consensual homicide provisions of the Criminal Code, a framing which plainly pre-determined the finding of invalidity, calls into question the legitimacy of the Court's invalidation of the impugned laws. I explain why the Court’s interpretation of the impugned laws’ objective(s) was arbitrary and inconsistent with its own precedent in Bedford. I also question the basis on which the Court invalidates section 14 of the Criminal Code, given that it does not discuss its objective. Finally, I propose a basic framework for determining a law’s objective for the purposes of Charter section 7 review. This framework is designed particularly for criminal prohibitions, though it may be suitable for other contexts. It takes as its starting point the rule in Bedford — which the Court cites but does not actually follow in Carter — that the objective of the prohibition is to be “taken at face value” and “confined to measures directly targeted by the law”. Ordinarily, the text of the provision, particularly a criminal law prohibition, should make the objective plain, and examining outside evidence, such as Hansard transcripts, should be unnecessary. The onus should be on the party challenging the law’s validity to establish either that the law’s objective is not what it appears to be “on face value” or that the objective is invalid for other reasons.