THE OAKES TEST

This assignment was written on November 17, 2008, for my Crim 330 (Criminal Procedure and Evidence) course. The title of this assignment is "R. v. Oakes". Retired APD Chief Constable Ian MacKenzie was my Professor.

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1. CITATION

R. v. Oakes, [1986] 1 S.C.R. 103

2. TRIAL AND APPEAL HISTORY

Upon conviction under section 8 of the now repelled Narcotic Control Act (NCA), the accused filed an appeal to challenge the constitutional validity of section 8 of the Narcotic Control Act. The accused was successful at the Provincial Appeal Court. Crown appealed that decision to the Supreme Court of Canada.

3. FACTS

The respondent, David Edwin Oakes, was charged with unlawful possession of a narcotic for the purpose of trafficking, contrary to s. 4(2) of the Narcotic Control Act. He elected trial by magistrate without a jury. At trial, the Crown adduced evidence to establish that Mr. Oakes was found in possession of eight one gram vials of cannabis resin in the form of hashish oil. Upon a further search conducted at the police station, $619.45 was located. Mr. Oakes told the police that he had bought ten vials of hashish oil for $150 for his own use, and that the $619.45 was from a workers' compensation cheque. He elected not to call evidence as to possession of the narcotic. Pursuant to the procedural provisions of s. 8 of the Narcotic Control Act, the trial judge proceeded to make a finding that it was beyond a reasonable doubt that Mr. Oakes was in possession of the narcotic.

4. ISSUES

a. Primary Issue(s)

Two specific questions are raised by this general question: (1) does s. 8 of the Narcotic Control Act violate s. 11(d) (presumed innocent until proven guilty) of the Charter; and, (2) if it does, is s. 8 a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society for the purpose of s. 1 of the Charter? If the answer to (1) is affirmative and the answer to (2) negative, then the constitutional question must be answered in the affirmative.

b. Secondary Issues(s)

N/A

5. APPELLANT'S ARGUMENT

In this matter, the Appellant is the Crown and their legal argument is that although the section 8 provision of the now repelled Narcotic Control Act is in violation of section 11(d) of the Canadian Charter of Rights and Freedoms, section 1 of the Charter allows the section 8 provision of the repelled NCA to be a reasonable limit prescribed by law and demonstrably justified in a free and democratic society.

6. RESPONDENT'S ARGUMENT

Following his conviction, the Respondent, David Edwin Oakes, brought a motion to challenge the constitutional validity of s. 8 of the Narcotic Control Act, which he maintained imposes a burden on an accused to prove that he or she was not in possession for the purpose of trafficking. He argued that s. 8 violates the presumption of innocence contained in s. 11(d) of the Charter.

7. INTERVENOR'S ARGUMENTS

N/A

8. MAJORITY DECISION

The majority’s decision on each of the primary issues(s) was to dismiss the appeal.

9. MAJORITY'S REASONING

The majority’s reasoning was based upon their finding that the section 8 (reverse onus clause) provision of the repelled NCA violated section 11(d) [presumption of innocence] of the Canadian Charter of Rights and Freedoms. Therefore, section 1 [guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society] of the Charter did not apply.

10. MINORITY'S (DISSENTING) DECISION

N/A

11. MINORITY'S REASONING

N/A

12. ANALYSIS

Civil Liberties lobby groups celebrate the Oakes case ruling as it gives more rights to the offenders convicted of drug related charges. On the other side of the coin this ruling is not only offensive to the victims, but also affects the safety of society as a whole, prevents law enforcement agencies from successfully laying trafficking charges against the accused and prevents Crown from successfully prosecuting the accused on drug trafficking.

13. USE OF THE CASE AS A PRECEDENT

The Oakes case, or Oakes Test, as it is referred to was used in the Wholesale Travel Group, Inc. [1991] case at appeal to determine whether or not ss. 36(1)(a) and 37.3(2) of the Competition Act were inconsistent with ss. 7 and 11(d) of the Charter. Supreme Court of Canada answered in the negative. Their reason was because the Charter of Rights and Freedoms apply only to individuals and not to corporations. In other words, corporations are not entitled to the benefits of constitutional rights that are afforded to human beings.

14. IMPACT OF THE DECISION

The decision of this case resulted in what is referred to as the “Oakes Test”. According to the Supreme Court of Canada the purpose of the “Oakes Test” is a proportionality test that is used to identify the factors that should be considered when the courts attempt to decide whether the violation of a Charter Right is justifiable in accordance with section 1 of the Charter. However, for both society and the justice system, the outcome can be a negative one, especially for victims of crime. Because, when the courts put more rights into the hands of the offender it ignores the paramount rights of the victims and the safety of society as a whole. Justice delayed is justice denied. The parliamentary response to this matter was to repel the Narcotics Control Act and replace it with the Controlled Drugs and Substances Act (CDSA) which was brought into force on May 14, 1997.