Monday, April 16, 2012

Five things about the Charter, 2: the Oakes test

David Oakes got arrested with a fair amount of hash oil and a chunk of cash outside a tavern in London, Ontario. He said it was just for personal use, but it was a lot of narcotics, and he was charged with possession for trafficking. Possible sentence: up to life.

In those days, the Narcotics Act obliged the prosecution in cases like these to prove possession of drugs beyond a reasonable doubt, but with possession proven, it was up to the defendant to prove that he was holding the drugs only for his own use, not for trafficking. If he could not, he could be convicted of the possession for trafficking charge. That law had been upheld in courts and the Supreme Court.

With the Charter of Rights in force, the situation changed.  Section 11 guarantees the presumption of innocence. Now it was up to the Crown to prove intent to traffick, not up to Oakes to prove the absence of such intent.

Or, maybe not.  Section 1 of the Charter says it guarantees rights, but "subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."  Maybe it was reasonable to put a limit on Oakes's right to be presumed innocent.  He had all the hash, he had all the cash -- shouldn't a free and democratic society be able protect itself by requiring him to prove he was no trafficker?

The Oakes test is how the Supreme Court interprets Section 1 of the Charter.  Chief Justice Brian Dickson's 1986 decision in R. v Oakes wrote the rules. It established that the limit on rights had to be "carefully designed to achieve the objective in question," could not be arbitrary, unfair, or irrational, and should impair as little as possible the right or freedom in question. And there should be proportionality between the limit imposed on rights and the objective for which they were being limited.

Dickson concluded the presumption of innocence was more important than convicting a possible trafficker. The Crown could not use Section 1 to avoid having to prove the trafficking charge.

So R. v Oakes reaffirmed the presumption of innocence as the pre-Charter legislation and jurisprudence had not.  More lastingly, Dickson's rules -- the Oakes test -- are how all possible Section 1 claims to limits on rights are assessed. There can be limits, but the Charter demands they be justified, and the Oakes test is pretty stringent on justification.
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