Nov 28, 2014

Facts: s. 8 of the Narcotic Control Act (reverse onus clause) created a “rebuttable presumption” that once the fact of possession of a narcotic had been proven, an intention to traffic would be inferred unless the accused established an absence of such an intention.Oakes challenged this “reverse onus” provision, arguing that it violated s. 11(d) of the Charter.

Issue: Did the reverse onus clause violate section 11(d) of the Charter? Can this infringement be saved under section 1?

Held: Section 8 of the NCA is unconstitutional. It cannot be saved by section 1 (Failed at the rational connection stage)


Step 1: Does the legislation infringe upon a Charter right? If no, is the legislation constitutional?

Step 2: If yes, is the infringement of that right justified as a limitation under Section 1 of the Charter?

Step 2(A) Pressing and Substantial Purpose: The objective must be of sufficient importance to warrant overriding a constitutionally protected right or freedom (Big M – purpose must be original, Butler – SCC allows for a shifting purpose in order to prevent harm rather than preserve morality) Take into consideration values essential to a free and democratic society: human dignity, social justice & equality, accommodation of various beliefs, cultural and group identities, faith in social & political institutions.

Step 2(B) Proportionality Test (3 parts): The means chosen to advance the legislations objective are reasonable and demonstrably justified.

Part A: Rational Connection

·Measures must be rationally connected to the objective

·Means used must be carefully designed to achieve the objective

oIf the legislation is not effective, it is not rationally connected

·Legislation cannot be arbitrary, unfair, or based on irrational considerations

Part B: Minimal Impairment

·Impair the right or freedom as little as possible

·If there are alternative modes of achieving Parliament’s objective that infringe to a lesser extent, probably not minimally impairing

·Edwards Books: Dickson Court’s role is to determine whether the legislative scheme is good enough

o Balance Minimal Level of acceptability vs. Ideal Level

o Introduces rational basis as a standard

·Two standards within this test: Rational basis (deference to the courts (Irwin Toy)) vs. Least Impairing (least intrusive) – cause of tension

·How is the court going to be a neutral arbitrator between two groups – make reference to cases and analogies to support where the “action” is going to be – know your cases

Part C: Proportionality Between Effects and Objectives

·Overall proportionality between the effects of the measures that limit the Charter right and the objective which has been identified as important

·Does the benefit derived from the legislation outweigh the seriousness of infringement?

·More severe the intrusion (effects), the more important the objective

· Dagenais: One must compare the beneficial effects and the harmful effects

o Focus not only on objectives, but whether the objectives are met

·The courts like it when lawmakers build in exceptions to the law, as if showing they are attempting to make something “minimally intrusive”

General Considerations of “the idea of the Common Good” (Individual Rights vs. The Common Good)

·Health (BR, Chaoulli)


·Public safety

·Morals (Morgentaler, Butler)

Application of Oakes to facts:

·The objective of protecting society from the ills associated with drug traffickingwas of sufficient importance to warrant an override.The fed government had submitted evidence to establish the seriousness of the problem of drug trafficking.

The court concluded that the reverse onus clause – failed the first step of the proportionality test.The means were not rationally connected to the objective of curbing trafficking because there was no rational connection between possession of a small quantity of narcotics and intent to traffic.It would have probably failed the minimal impairment step as well!