Nov 22, 2014

Establishing whether laws can survive Charter scrutiny

R. v. Oakes, [1986] 1 SCR 103

R v Oakes establishes a test which enables the government to pass constitutionally valid criminal laws containing a reverse onus. A reverse onus puts the onus on the accused to demonstrate why he/she is not guilty.

The facts of Oakes involved the constitutional validity of section 8 of the Narcotic Control Act, which was challenged for violating section 11(d) of the Canadian Charter of Rights and Freedoms – which establishes the presumption of innocence until proven guilty. Section 8 puts the burden of proof on the accused when found in possession of a narcotic to establish that he/she did not possess it with the intention of trafficking drugs.

The Supreme Court of Canada held that section 8 was unconstitutional and could not be upheld by section 1 of the Canadian Charter of Rights and Freedoms.

The Court reasoned that the legislature intended to impose a legal burden on the accused by using the word “establish” in section 8. Requiring the accused to disprove the existence of an essential element of an offence in question violates their presumption of innocence under the Charter.

Since the section was prima facie unconstitutional, the Supreme Court proceeded to evaluate whether the infringement was justified under section 1 of the Charter.

The Supreme Court therefore set out the test the government has to pass in order for the law to survive Charter scrutiny under Section 1, a test which has now become known as the "Oakes test":

  1. The objective, which the measures responsible for a limit on a Charter right or freedom are designed to serve, must be of sufficient importance to warrant overriding a constitutionally protected right or freedom – ie. it must be of pressing and substantial concern.
  2. The measures must be rationally connected to the objective, meaning they must be carefully designed to achieve the objective.
  3. The measures should impair as little as possible the right or freedom in question.
  4. There must be proportionality between the effects of the measures and the objective which has been identified as being of sufficient importance.