1. REGINA V OAKES [1986]
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2. Regina v Oakes cont’d
Oakes charged with unlawful possession of a narcotic for purposes of trafficking
challenged the “reverse onus” provision of section 8 of Narcotic Control Act
once possession proved, onus shifts to accused
must demonstrate, on the balance of probabilities, that possession not for purpose of trafficking
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3. Regina v Oakes cont’d
Court ruled: section 8 violates presumption of innocence (Charter, Sec. 11 (d))
Questions:
(1) Can infringement be saved under Sec. 1?
(2) What standards to be used to answer (1)?
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4. Answer to Question (2): The “Oakes Test”
1. Burden of proof on party seeking to uphold infringement (E.g., Federal Gov’t)
2. Standard of proof: preponderance of probabilities
3. Objectives: sufficiently important to warrant overriding rights; must be “societal concerns” that are “pressing and substantial in a free and democratic society.”
4. Proportionality Test: Means chosen reasonable and demonstrably justified.
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5. Proportionality Test
Means fair and not arbitrary; carefully designed to achieve objective(s) and rationally connected to it (them) (rational connection)
Means must impair rights as little as possible (minimal impairment)
Proportionality between effects of infringing measure and the objective(s); the more severe the infringement, the more important the objective must be (proportionate means)
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6. Answer to Question (1)
Section 8 fails the “rational connection” requirement
“...possession of a small or negligible quantity of narcotics does not support the inference of trafficking.”
Section 8 therefore “of no force or effect”
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