Whatever Happened to …R. v. Oakes - LawNow Magazine

Whatever Happened to …R. v. Oakes

Famous Case RevisitedMr. Oakes is compelled by s. 8 to prove he is not guilty of the offence of trafficking.  He is thus denied his right to be presumed innocent and subjected to the potential penalty of life imprisonment unless he can rebut the presumption.  This is radically and fundamentally inconsistent with the societal values of human dignity and liberty which we espouse, and is directly contrary to the presumption of innocence enshrined in s. 11(d).  Let us turn now to s. 1 of the Charter.  [para 61]

In my view, s. 8 does not survive this rational connection test.   . . .  possession of a small or negligible quantity of narcotics does not support the inference of trafficking.  In other words, it would be irrational to infer that a person had an intent to traffic on the basis of his or her possession of a very small quantity of narcotics.  [para 78]

– R. v. Oakes [1986] 1 SCR 103

Introduction

David Oakes became famous for the legal doctrine that bears his name.  The Oakes test has been applied in more than 1700 written judicial decisions.

In 1981 David Edwin Oakes, a 23-year-old construction worker, was approached by police outside a tavern in London, Ontario.  They found eight one-gram vials of hashish oil worth $150 and $619.45 in cash on him.  He was charged with unlawful possession of a narcotic for the purpose of trafficking, under the then Narcotic Control Act.  Under section 8 of that Act, if you were found guilty of possession of a certain amount of an illegal narcotic, you would be convicted of trafficking in that drug, unless you could prove otherwise.  This “reverse onus” was a rare and contentious part of the criminal law in Canada which effectively forced an accused person to prove his or her innocence.  At the time, conviction for trafficking in the narcotic carried a maximum penalty of life imprisonment.

So began one of the most famous cases in Canadian legal history, R. v. Oakes, [1986] 1 SCR 103 <http://canlii.ca/t/1ftv6>.  It would set one of the most important legal precedents to do with the application of the Charter of Rights.

Facts

Oakes claimed that the drugs in his possession were for purely personal use to relieve his pain from a workplace accident.  He said the money was from having recently cashed his worker’s compensation cheque.

His lawyer took aim at the constitutionality of the reverse onus when the Charter came into effect the next year.  Oakes’ position was that the reverse onus in section 8 of the Narcotics Control Act violated the presumption of innocence contained in section 11(d) of the new Charter.  Even if the reverse onus did violate the constitutional presumption of innocence, could that violation be excused by section 1 of the Charter?  This provision limits some rights and freedoms as may be “demonstrably justified in a free and democratic society.”

By 1985 the case reached the Supreme Court of Canada, which took almost a year to render a decision. It unanimously held that the shift in onus violated Oakes’ section 11(d) right to presumption of innocence.  It went on to find the section 8 reverse onus unconstitutional and, further, that it was not justifiable under section 1 of the Charter.

From this case a three-part test was developed to apply section 1.  How a government in Canada can justifiably and constitutionally limit one’s rights under section 1 of the Charter became known as the Oakes test.  It remains central to Charter interpretation today.

The Oakes Test

Oakes’ lawyer, Geoff Beasley, was quite junior when he took on the Oakes case.  It was a remarkable win early in his career. The Oakes test is a judicial three-part test to determine which Canadian legislation is permitted to violate or limit constitutional rights under section 1 of the Charter.  Government, whose legislation contravenes one or more specific rights, may argue that the legislation is “demonstrably justifiable” and that it should remain in force.

Let’s take the CheckStop program as an example.  When police stop every driver who happens to be travelling along a road, on the face of it they are conducting “arbitrary detentions” in contravention of section 9 of the Charter of Rights.  The unconstitutional roadside practice of stopping vehicles would cease, except that the government has one more opportunity to rescue it.  This is under section 1 using the Oakes test.

The first part of the test was that the law must address a pressing and substantial public policy objective.  In this case, CheckStop seeks to reduce the carnage and suffering on Canadian roads caused by drunk driving.

The second part of the test asks whether there is a rational connection between the government action that violates the right and achievement of the objective.  In other words, do CheckStops actually nab impaired drivers and thereby discourage the behaviour?

The third and final part of the Oakes test determines whether the government interference with the right is as minimal as possible.  If you have been through a CheckStop, you will likely agree that the “arbitrary detention” is not a serious inconvenience (unless you have consumed too much alcohol or have warrants for your arrest).

Police stopping vehicles randomly on roadsides is today a constitutional form of criminal law enforcement.  It is an excusable, “demonstrably justifiable” exception to the right against arbitrary detention, because the Supreme Court of Canada has ticked off these three boxes of the Oakes test in a succession of decisions: Dedman v. The Queen (SCC, 1985) http://canlii.ca/t/1ftwf; R. v. Hufsky (SCC, 1988) http://canlii.ca/t/1ftg3; R. v. Ladouceur (SCC, 1990) http://canlii.ca/t/1fsvs; R. v. Wilson (SCC, 1990) http://canlii.ca/t/1fsvv.  It is noteworthy also that the judges were seriously divided on most of these cases.  The Oakes test can generate highly differing opinions.

In the Oakes case itself, the Supreme Court found that the federal government failed to rationally connect Oakes’ possession of a small amount of illegal drugs and money to the presumption that he was engaged in the crime of drug trafficking.  The burden of proving that he was not trafficking in drugs should not have been transferred to him.  He was convicted of the minor possession charge and found not guilty of trafficking.  The reverse onus on accused persons in section 8 of the Narcotics Control Act was ruled unconstitutional.

Where Are They Now?

The Oakes test is a judicial three-part test to determine which Canadian legislation is permitted to violate or limit constitutional rights under section 1 of the Charter Oakes’ lawyer, Geoff Beasley, was quite junior when he took on the Oakes case.  It was a remarkable win early in his career.  After the Oakes case, Beasley became a Crown prosecutor and handled numerous other high-profile cases.  These included the Ssenyonga case (first trial of an accused for knowingly spreading HIV/AIDS) and the trial of McClintic and Rafferty for the murder of Tori Stafford.  In 2004, Beasley was appointed a judge in Ontario but chose to resign shortly afterward to return to prosecuting.

David Oakes became famous for the legal doctrine that bears his name.  The Oakes test has been applied in more than 1700 written judicial decisions.

Around 2011, Oakes appears to have moved from London, Ontario to Calgary to work as a self-employed network installer of phone and computer systems.  From a legal perspective, Oakes was lucky because he was charged with illegal possession and trafficking of drugs before the Charter was enacted but benefited from the Charter’s protections after it was enacted.

However, major judicial decisions endure in perpetuity.  They are named after, and continue to be associated with, the individuals who are involved in them.  Almost 60 years old now, David Oakes prefers not talk about his famous case and still lives with the stigma of it.  Referring to the role he played in one of the most influential cases in Canadian constitutional law, Oakes was quoted as saying “I could do without.”

Authors:

Peter Bowal
Peter Bowal
Peter Bowal is a Professor of Law at the Haskayne School of Business, University of Calgary in Calgary, Alberta.
 

Mark Kelndorfer
Mark Kelndorfer graduated from the Haskayne School of Business, University of Calgary in 2014.
 


A Publication of CPLEA

For COVID-19 information: 
COVID-19 Alberta Law FAQ

Font Resize
Contrast