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REGINA V OAKES [1986]

REGINA V OAKES [1986]. 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

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REGINA V OAKES [1986]

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  1. REGINA V OAKES [1986]

  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

  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) Whatstandards to be used to answer (1)?

  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.

  5. Proportionality Test • Meansfair 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)

  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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