Charter case study

This is a little review…

¡ The Facts:§ In 1981 David Edwin Oakes, a 23-year-old

construction worker, was approached by police outside a tavern in London, Ontario. They found eight one-gram vials of hashish oil worth $150 and $619.45 in cash on him.

§ He was charged with unlawful possession of a narcotic for the purpose of trafficking, under the then Narcotic Control Act. (an Indictable Offence)

¡ Under the Criminal Code of Canada, there are three types of offences: summary conviction offences, indictable offences, and those offences where the Crown may elect to proceed by summary conviction or by indictment. Crown-electable offences are often referred to as “hybrid offences”.

¡ The simplest explanation of the difference between summary conviction offences and indictable offences is that summary offences are less serious than indictable offences.

¡ Oakes claimed that the drugs in his possession were for purely personal use to relieve his pain from a workplace accident. He said the money was from having recently cashed his worker’s compensation cheque.

¡ Oakes’ position was that the reverse onus in section 8 of the Narcotics Control Act violated the presumption of innocence contained in section 11(d) of the new Charter. Even if the reverse onus did violate the constitutional presumption of innocence, could that violation be excused by section 1 of the Charter? Yes…No…well…??

¡ An accused brought to trial must be given a fair chance to be heard and cannot be presumed to be guilty of a crime until the prosecution can prove their guilt beyond a reasonable doubt.

¡ Reverse onus occurs when the burden of proof shifts from the Prosecution to the Accused.

¡ legally allows the government to limit an individual's Charter rights. This limitation on rights has been used in the last twenty years to prevent a variety of objectionable conduct such as hate speech and obscenity.

¡ Your rights and freedoms can be limited if it is reasonable to do so under the law.

¡ The Supreme Court said:§ s. 8 of the Narcotic Control Act is in violation of s.

11(d) of the Charter§ Why? Because it forces the accused to disprove a

presumed fact without allowing for reasonable doubt

§ However, Justice Brian Dickson acknowledged that rationally connecting a presumed fact to a basic fact is a fair way to justify a law under s. 1 of the Charter

¡ This case was especially important for three reasons:§ Explicitly articulated how our rights can be legally

limited§ Created a precedent which has been used in

countless cases since§ Contributed greatly to the politicization of the

judiciary since the Oakes test asks judges to evaluate the merits of legislation…What??

¡ The method described by the Supreme Court of Canada for determining whether a law that violates a fundamental right or freedom should be saved as a reasonable limit under section 1 of the Charter.

¡ There are three phases to consider when determining involved in the test…

¡ Question:§ What is the most political part of the Oakes test –

does a law benefit society or the individual? So…is it more important that everyone’s rights are protected, or that all people in society are protected? Explain…

§ Does the Oakes test mean that judges have too much power?