R. v. Oakes (1986), 65 N.R. 87 (SCC)
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[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
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R. v. Oakes
(No. 17550)
Indexed As: R. v. Oakes
Supreme Court of Canada
Dickson, C.J., Estey, McIntyre, Chouinard, Lamer, Wilson and Le Dain, JJ.
February 28, 1986.
Summary:
An accused was charged with possession of a narcotic for the purpose of trafficking contrary to s. 4(2) of the Narcotic Control Act. Section 8 of the Act provided that an accused in possession of narcotics was presumed to be in possession for the purpose of trafficking. The accused submitted that s. 8 violated his right to be presumed innocent under s. 11(d) of the Charter of Rights and Freedoms.
The Ontario Provincial Court, in a judgment reported 38 O.R.(2d) 598, held that s. 8 was invalid, because there was no rational connection between the fact proved (possession) and the presumed fact (possession for the purpose of trafficking). The Crown appealed.
The Ontario Court of Appeal, in a judgment reported 145 D.L.R.(3d) 123, dismissed the appeal. The court held that a reverse onus clause that placed a burden on an accused to disprove an essential element of an offence on a balance of probabilities contravened the right to be presumed innocent. The Crown appealed.
The Supreme Court of Canada dismissed the appeal. The court affirmed that s. 8 violated the accused’s right to be presumed innocent and was therefore of no force and effect. The court also held that the limitation imposed by s. 8 was not reasonable or demonstrably justified in a free and democratic society for the purpose of s. 1 of the Charter.
Civil Rights – Topic 4902
Presumption of innocence – Presumed innocent defined – Charter of Rights and Freedoms, s. 11(d) – The Supreme Court of Canada held that the minimum requirements of s. 11(d) were that the accused be proved guilty beyond a reasonable doubt, the state must bear the burden of proof and criminal prosecutions must be carried out in accordance with lawful procedures and fairness – See paragraph 32.
Civil Rights – Topic 4945
Presumption of innocence – Evidence and proof – Reverse onus provisions – Section 8 of the Narcotic Control Act provided that an accused proved to be in possession of narcotics was presumed to have possession for the purpose of trafficking – The Supreme Court of Canada held that such a reverse onus provision requiring the accused to disprove a presumed fact on a balance of probabilities, where that presumed fact was an important element of the offence, violated the accused’s right to be presumed innocent under s. 11(d) of the Charter – The court stated that whether there was a rational connection between the proved fact and the presumed fact was irrelevant to determining whether Charter rights were violated – See paragraphs 56 – 61.
Civil Rights – Topic 8004
Canadian Bill of Rights – Operation and interpretation – Bill of Rights – Nature of – The Supreme Court of Canada stated that the Bill of Rights was not a constitutional document, but merely a statutory document that recognized and declared existing rights – The court stated that cases interpreting provisions of the Bill of Rights offered important lessons, but did not constitute binding authority in interpreting the Charter – See paragraphs 34 – 39.
Civil Rights – Topic 8348
Canadian Charter of Rights and Freedoms – Application – Exceptions – Reasonable limits prescribed by law, s. 1 – The Supreme Court of Canada stated that a person invoking s. 1 has the onus of proving on a very high degree of probability that the limitation on a Charter right is reasonable and demonstrably justified – The court held that the objective must be “of sufficient importance to warrant over riding a constitutionally protected right or freedom” and that the means used to achieve the objective must be reasonable and justified based on the proportionality test – The court stated that the means must not be arbitrary, unfair or based on irrational considerations, should impair “as little as possible” the right in question, and there must be proportionality between the effects of the measures and the objective which has been identified as of sufficient importance – See paragraphs 66 – 71.
Civil Rights – Topic 8348
Canadian Charter of Rights and Freedoms – Application – Exceptions – Reasonable limits prescribed by law, s. 1 – Section 8 of the Narcotic Control Act provided that an accused proved to have possession of a narcotic was presumed to have possession for the purpose of trafficking – The Supreme Court of Canada held that s. 8 violated an accused’s right to be presumed innocent under s. 11(d) of the Charter – The Supreme Court, in determining that the limitation imposed by s. 8 was not reasonable and demonstrably justified under s. 1 of the Charter, held that although the objective of curbing drug trafficking was of sufficient importance to over ride the Charter right, the means chosen to achieve that objective lacked a rational connection between the basic fact of possession and the presumed fact of possession for the purpose of trafficking – The court stated that it was not reasonable, but irrational, to infer that possession of a small amount of a narcotic meant an intention to traffic – See paragraphs 62 – 79.
Civil Rights – Topic 8462
Canadian Charter of Rights and Freedoms – Interpretation – Purpose of right or freedom – The Supreme Court of Canada restated that the purpose of a right or freedom was to be interpreted by reference to the character and larger objects of the Charter itself, the language chosen to articulate the specific right or freedom, the historical origins of the concepts enshrined, and, where applicable, the meaning and purpose of the other specific rights and freedoms with which it is associated within the context of the Charter – See paragraphs 27 – 28.
Civil Rights – Topic 8469
Canadian Charter of Rights and Freedoms – Interpretation – United States experience – The Supreme Court of Canada, in determining whether s. 8 of the Narcotic Control Act violated an accused’s right to be presumed innocent under s. 11(d) of the Charter, considered decisions from the United States respecting the presumption of innocence – See paragraphs 50 – 53.
Civil Rights – Topic 8470
Canadian Charter of Rights and Freedoms – Interpretation – International law – The Supreme Court of Canada, in determining whether s. 8 of the Narcotic Control Act violated an accused’s right to be presumed innocent under s. 11(d) of the Charter, considered international decisions based on the presumption of innocence in the European Convention on Human Rights – See paragraphs 54 – 55.
Civil Rights – Topic 8473
Canadian Charter of Rights and Freedoms – Interpretation – Precedent – Pre-Charter – The Supreme Court of Canada stated that although there were “important lessons to be learned from the Canadian Bill of Rights jurisprudence, it does not constitute binding authority in relation to the constitutional interpretation of the Charter” – The court held that such pre-Charter cases were of limited use because the Charter was a constitutional document, fundamentally different from the statutory Bill of Rights that merely recognized and declared existing rights – See paragraphs 34 – 39.
Evidence – Topic 2377
Presumptions – Effect of – The Supreme Court of Canada stated that presumptions were either made without basic facts (conclusion drawn unless contrary proved) or with basic facts (conclusion drawn upon proof of basic fact) – Presumptions with basic facts were either permissive (optional) or mandatory (must be drawn) – The court stated that rebuttable presumptions fell into three categories: (1) the accused must raise a reasonable doubt as to the existence of the presumption, (2) the accused had the evidentiary burden to adduce sufficient evidence to bring the truth of the presumed fact into question and (3) the accused must disprove the presumed fact on a balance of probabilities – See paragraphs 17 – 26.
Narcotic Control – Topic 705
Offences – Trafficking – Presumption from possession, s. 8 – The Supreme Court of Canada held that the reverse onus provision of s. 8 of the Narcotic Control Act violated an accused’s right to be presumed innocent under s. 11(d) of the Charter of Rights and Freedoms and was therefore of no force and effect – The court also held that the limitation imposed by s. 8 was not reasonable and demonstrably justified in a free and democratic society as required under s. 1 of the Charter – See paragraphs 56 – 79.
Cases Noticed:
R. v. Shelley, [1981] 2 S.C.R. 196; 37 N.R. 320, refd to. [para. 5].
R. v. Babcock and Auld, [1967] 2 C.C.C. 235 (B.C.C.A.), refd to. [para. 15].
R. v. Carroll (1983), 40 Nfld. & P.E.I.R. 147; 115 A.P.R. 147; 147 D.L.R.(3d) 92 (P.E.I.C.A.), refd to. [para. 21].
R. v. Cook (1983), 56 N.S.R.(2d) 449; 117 A.P.R. 449; 4 C.C.C.(3d) 419 (N.S.C.A.), refd to. [para. 21].
R. v. O’Day (1983), 46 N.B.R.(2d) 77; 121 A.P.R. 77; 5 C.C.C.(3d) 227 (N.B.C.A.), refd to. [para. 21].
R. v. Landry, [1983] C.A. 408; 7 C.C.C.(3d) 555 (Que. C.A.), refd to. [para. 21].
R. v. Stanger (1983), 46 A.R. 241; 7 C.C.C.(3d) 337 (Alta. C.A.), refd to. [para. 21].
R. v. Therrien (1982), 67 C.C.C.(2d) 31 (Ont. C.C.), refd to. [para. 22].
R. v. Fraser (1982), 21 Sask.R. 227; 138 D.L.R.(3d) 488 (Sask. Q.B.), refd to. [para. 22].
R. v. Sharpe (1961), 131 C.C.C. 75 (Ont. C.A.), refd to. [para. 23].
R. v. Silk, [1970] 3 C.C.C.(2d) 1 (B.C.C.A.), refd to. [para. 23].
R. v. Appleby, [1972] S.C.R. 303, refd to. [para. 23].
R. v. Erdman (1971), 24 C.R.N.S. 216 (B.C.C.A.), refd to. [para. 23].
Public Prosecutor v. Yuvaraj, [1970] 2 W.L.R. 226, refd to. [para. 25].
R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161, appld. [para. 28].
Reference re s. 94(2) of the Motor Vehicle Act, [1985] 2 S.C.R. 486; 63 N.R. 266, refd to. [para. 29].
Woolmington v. Director of Public Prosecutions, [1935] A.C. 462 (H.L.), refd to. [para. 30].
Manchuk v. The King, [1938] S.C.R. 341, refd to. [para. 30].
R. v. City of Sault Ste. Marie, [1978] 2 S.C.R. 1299; 21 N.R. 295, refd to. [para. 30].
R. v. Dubois, [1985] 2 S.C.R. 350; 62 N.R. 50; 66 A.R. 202, refd to. [para. 32].
Singh et al. v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; 58 N.R. 1, refd to. [para. 38].
R. v. Therens, [1985] 1 S.C.R. 613; 59 N.R. 122; 40 Sask.R. 122, refd to. [para. 38].
R. v. Stock (1983), 10 C.C.C.(3d) 319 (B.C.C.A.), refd to. [para. 40].
Ong Ah Chuan v. Public Prosecutor, [1981] A.C. 648, dist. [para. 45].
Anson and The Queen, Re (1983), 146 D.L.R.(3d) 661 (B.C.C.A.), refd to. [para. 47].
R. v. Holmes (1983), 41 O.R.(2d) 250 (Ont. C.A.), refd to. [para. 48].
R. v. Whyte (1983), 10 C.C.C.(3d) 277 (B.C.C.A.), refd to. [para. 48].
R. v. Lee’s Poultry (1985), 7 O.A.C. 100; 17 C.C.C. 539 (Ont. C.A.), refd to. [para. 48].
R. v. S.T. (1985), 66 N.S.R.(2d) 311; 152 A.P.R. 311; 18 C.C.C.(3d) 125 (N.S.C.A.), refd to. [para. 48].
R. v. Kowalczuk (1983), 20 Man.R.(2d) 379; 5 C.C.C.(3d) 25 (Man. C.A.), refd to. [para. 48].
R. v. Schwartz (1983), 25 Man.R.(2d) 295; 10 C.C.C.(3d) 34 (Man. C.A.), refd to. [para. 48].
Boyle and The Queen, Re (1983), 41 O.R.(2d) 713 (Ont. C.A.), refd to. [para. 48].
Tot v. United States (1943), 319 U.S. 463, refd to. [para. 51].
Leary v. United States (1969), 395 U.S. 6, refd to. [para. 52].
County Court of Ulster County, New York v. Allen (1979), 442 U.S. 140, refd to. [para. 53].
Winship, Re (1970), 397 U.S. 358, refd to. [para. 53].
Austria v. Italy (Pfunders Case) (1963), 6 Yearbook E.C.H.R. 740, refd to. [para. 54].
Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [para. 60].
Skapinker v. Law Society of Upper Canada, [1984] 1 S.C.R. 357; 53 N.R. 169; 3 O.A.C. 321, refd to. [para. 60].
Bater v. Bater, [1950] 2 All E.R. 458 (C.A.), refd to. [para. 67].
Hanes v. Wawanesa Mutual Insurance Co., [1963] S.C.R. 154, refd to. [para. 67].
Smith v. Smith & Smedman, [1952] 2 S.C.R. 312, refd to. [para. 67].
Statutes Noticed:
Canadian Charter of Rights and Freedoms, 1982, sect. 1, sect. 11(d) [para. 2].
Narcotic Control Act, R.S.C. 1970, c. N-1, sect. 3(1), sect. 3(2), sect. 4, sect. 8 [para. 2].
Canadian Bill of Rights, R.S.C. 1970, App. III, sect. 2(f) [para. 34].
Universal Declaration of Human Rights (1948), art. 11(1) [para. 31].
International Covenant on Civil and Political Rights (1966), art. 14(2) [para. 31].
European Convention on Human Rights, sect. 6(2) [para. 54].
Authors and Works Noticed:
Cross on Evidence (5th Ed.), pp. 122-123 [para. 17]; 124 [para. 20].
Jacobs, Francis, The European Convention on Human Rights (1975), pp. 113-114 [para. 55].
Cross, Rupert, Rede Lectures, The Golden Thread of the English Criminal Law: The Burden of Proof (1976), pp. 11-13 [para. 58].
MacKay and Cromwell, Oakes: A Bold Initiative (1983), 32 C.R.(3d) 221, p. 233 [para. 59].
Sopinka and Lederman, The Law of Evidence in Civil Cases (1974), p. 385 [para. 67].
Special Committee on Traffic in Narcotic Drugs, Report of (1955), pp. 690-700 [para. 73].
Commission of Inquiry into the Non-Medical Use of Drugs, Final Report (1973) [para. 73].
Counsel:
Julius Isaac, Q.C., Michael R. Dambrot and Donna C. McGillis, for the appellant;
Geoffrey A. Beasley, for the respondent.
This appeal was heard on March 12, 1985, before Dickson, C.J., Estey, McIntyre, Chouinard, Lamer, Wilson and Le Dain, JJ., of the Supreme Court of Canada.
On February 28, 1986, the judgment of the Supreme Court of Canada was delivered and the following opinions were filed:
Dickson, C.J. (Chouinard, Lamer, Wilson and Le Dain, JJ., concurring) – paragraphs 1 – 80.
Estey, J. (McIntyre, J., concurring) – paragraph 81.
