Case Briefs

R v Oakes

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  1. Does s.8 of the Narcotic Control Act impose a presumption of guilt in violation of s.11(d) of the Charter?


Conviction overturned at ONCA, then Crown's appeal of ONCA's decision


Dickson, writing for the majority, states that it is clear that the Act creates a reverse onus on the defendant, and they must determine if it violates the Charter right to the presumption of innocence. They state that this right gets you three things:

  1. you must be proven guilty beyond a reasonable doubt;
  2. the Crown must bear the burden of proof; and
  3. criminal prosecutions must be carried out in accordance with lawful and procedural fairness.

He finds that the reverse onus created in the Act clearly violates the s.11(d) right to the presumption of innocence, as it requires the accused to bear the burden of proof. He also states that it is not exempted merely because it is a federal statute – it is still subject to the Charter.

Dickson then lays out the test for analyzing whether a section is saved under s.1 of the Charter. He states the values the Charter was enacted to protect include "respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society". He proposes a two part test( Oakes test):

  1. the purpose of the law must be important to society or be designed to promote a sufficiently important objective.
  2. Proportionality
    1. Rational Connection
    2. Minimal Impairment
    3. Proportionality between means and effect

In doing the analysis of the second part, Dickson states:

First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. Second, the means, even if rationally connected to the objective in this first sense, should impair "as little as possible" the right or freedom in question. Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of "sufficient importance".

Applying this test to the case at bar, it does not pass the rational connection test as the possession of a small quantity of narcotics does not support the inference of trafficking - "it would be irrational to infer that a person had an intent to traffic on the basis of his or her possession of a very small quantity of narcotics". As a result, the section is unconstitutional and the appeal dismissed.


  • There are three rights inherent in s.11(d) of the Charter:
    • you must be proven guilty beyond a reasonable doubt;
    • the Crown must bear the burden of proof; and
    • criminal prosecutions must be carried out in accordance with lawful and procedural fairness.
  • Federally enacted statutes are still subject to the Charter, even though they are enacted by Parliament.
  • To test if a section is saved under s.1:

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