The Oakes Test

R. v. Oakes

On February 28, 1986, four years after the Canadian Charter of Rights and Freedoms (Charter) came into effect; the Supreme Court of Canada delivered its decision in R. v. Oakes[1]. This case was important for two reasons:

1. a. it established that the provisions of the Charter could be relied upon to challenge government legislation; and
2. b. it produced the “Oakes Test” which the S.C.C. would use to make decisions in its future Charter rulings.

Mr. Oakes was alleged to be a drug dealer. He had been charged with unlawful possession of a narcotic for the purpose of trafficking, contrary to s. 4(2) of the Narcotic Control Act.[2] The trial judge determined that Mr. Oakes had been found in the illegal possession of eight one gram vials of hash oil.[3] Oakes gave a statement that he bought the drugs for $150.00, and that they were for his personal use. The trial judge’s ruling that Oakes was in illegal possession of a narcotic triggered section 8 of the Act and Oakes was then required to prove that he was innocent of drug trafficking. Oakes challenged that section of the Act, as it put a “reverse onus” on him to prove that he was innocent. The challenge was based on s. 11(d) of the Charter which reads:

“Any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.”[4]

Oakes’ lawyer argued that section 8 infringed the right to be presumed innocent, by making him prove his innocence. The prosecution argued that the requirement of section 8 was a “reasonable limit prescribed by law” that could “be demonstrably justified in a free and democratic society” under section 1 of the Charter.

The trial judge agreed with Mr. Oakes’ position. He noted that the wording of the Narcotic Control Act meant that if a court rules that an individual was found in possession of just one marijuana cigarette would s/he be required to then prove that s/he was not guilty of drug trafficking. The court gave the federal government 18 months to revise the Act. The federal government appealed the decision.

Ontario’s Court of Appeal agreed with Mr. Oakes’ position, ruling that because the Act applied regardless of the quantity of drugs involved, there was no rational connection between the “reverse onus” requirement and the government’s objective to prevent drug trafficking.[5] The judges distinguished between different quantities of drugs: those that were for personal consumption and those that could be considered proof of the intent to sell narcotics. They did not define those quantities, saying that it was up to Parliament to determine them. The federal government further appealed to the supreme Court of Canada (S.C.C.).

All seven justices of the S.C.C. agreed with Mr. Oakes’ position.[6] Four agreed with reasons written by then Chief Justice Dickson. Two (Justices Estey and McIntyre), agreed with him “with respect to the relationship between s. 11(d) and s. 1 of the Charter,” but preferred the reasoning of the Ontario Court of Appeal.

Chief Justice Dickson developed the “Oakes test”, which would be used to decide Charter cases in the future. The Oakes test uses a “purposive approach” to analyzing the use of the Charter in court decisions, rather than the “constructive method” which was preferred by the two dissenting judges. The “constructive method” relied on the strict dictionary meaning of the words of the Charter. The “purposive approach” required that judges ask themselves: What did the Charter mean in the context of Canadian society as a whole? Several items have to be considered when using the “purposive approach” to legal analysis, which includes the use of the “constructive method”.

The government conceded the importance of the presumption of innocence, but argued that drug trafficking was such a serious societal problem that section 1 of the Charter should be used to uphold the “reverse onus” legislation as a reasonable limit prescribed by law that could be demonstrably justified in a free and democratic society.[7]

The first part of the “Oakes Test” test was to examine whether the legislation is rationally connected to its objective. Chief Justice Dickson started by examining the purpose of section 11 of the Charter stating “it is important to begin by understanding the cardinal values it embodies.”[8] He looked at this right in a historical context and noted that Canada had a long standing tradition of following this rule of law. He also noted that Canada had signed international treaties to that effect.

Second, Chief Justice Dickson reviewed the lower courts’ decisions across Canada and noted that those decisions were inconsistent. The cases either agreed with the government’s position, upheld Mr. Oakes’ (and others’) position, or did neither. Even the cases that came to the same conclusion appeared to have a different logic behind them. He felt that Canadians should benefit from the same interpretation of the law, regardless of where they were prosecuted, and no matter what level of court they appeared in. There had to be consistency in judicial decision-making across the country.[9]

Chief Justice Dickson also examined what had happened in similar situations in other democracies.[10] He came to the conclusion that: “If an accused bears the burden of disproving on a balance of probabilities an essential element of an offence, it would be possible for a conviction to occur despite the existence of a reasonable doubt.”[11] He feared that an accused person might have the possession of drugs for personal use, without any intention of selling them, and that the “reverse onus” would be oblige the judge to find the accused guilty of drug trafficking. He also noted that drug trafficking carried the potential of a life in jail sentence. All of these considerations contributed to a breach of Canadians’ right to be presumed innocent.

The legislation failed the first part of the test in that it should be rationally connected to its objective. The objective was to catch and punish drug traffickers. However, section 8 of the Act required judges to find accused persons guilty of drug trafficking unless if they could not prove that their innocence. Furthermore the provision applied even if they were in possession of one marijuana cigarette. Even if a judge had a reasonable doubt the accused was innocent of trafficking, the judge was required to convict them if they could not prove they were innocent.[12] There was a possibility that many innocent people would go to jail. Thus Chief Justice Dickenson ruled that there was no rational connection to the objective.

The Chief Justice then acknowledged that:

The rights and freedoms guaranteed by the Charter are not, however, absolute.[13]

He then considered whether section 8 of the Narcotics Control Act could be saved under the provisions of section 1 of the Charter. He asked whether the effect of the legislation would cause minimal impairment to the right or freedom in question – the second part of the “Oakes Test”. He noted that:

It is important to observe at the outset that s. 1 has two functions: first, it constitutionally guarantees the rights and freedoms set out in the provisions which follow; and, second, it states explicitly the exclusive justificatory criteria (outside of s. 33 of the Constitution Act, 1982) [the “Notwithstanding Clause”] against which limitations on those rights and freedoms must be measured.[14]

Those functions had to be assessed in two ways. First, the objective of the legislation overriding a Charter right must sufficiently important to justify over riding a Charter right. Second, the party relying on section 1 must prove that the limitation it is reasonable and demonstrably justified.[15] The objective of discouraging drug trafficking was of sufficient importance. However, the government had over reached its objectives and could not justify convicting every person found in the possession of illegal drugs guilty of trafficking in them. The legislation was so sweeping that persons who were caught with any amount of illegal drugs, including those who had small amounts that were plainly for their personal use could be reasonably be expected to found guilty as drug traffickers because of the “reverse onus” provisions of the Act. The provisions were neither reasonable or justified.

The final part of the “Oakes Test” was stated as follows:

Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of sufficient importance.[16]

The Court reiterated that discouraging drug trafficking was of “sufficient importance” to override Charter rights, but ruled that the effect of the Narcotics Control Act was potentially too harsh. A person caught with a small amount of “personal use” drugs could face a life sentence in jail. There was no proportionality between the crime and the jail sentence that could be imposed. The Supreme Court agreed with the trial judge’s conclusion.

The federal government subsequently passed the Controlled Drugs and Substances Act (CDSA). The CDSA distinguishes between different quantities of drugs and has penalties that are proportionate to the crime, with lighter sentences for personal use amounts of drugs and heavy sentences for trafficking in drugs.[17]

Note: the third portion of the “Oakes Test” was subsequently modified in another decision, Dagenais v. Canadian Broadcasting Corp., to read

“There must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of sufficient importance “in and between the deleterious and salutary effects of the measures at issue”.[18]