The Hashish Case of David Edwin Oakes

Running Head: OAKES TEST 1


R. v. Oakes
PBLA 2502
Carolyn Maclean
Shaquelle Simpson
November 2016

David Edwin Oakes was caught with a significant amount of hash oil and cash on December 17, 1981. It was presumed by authorities that the hash was meant for distribution and the money was the proceeds from previous transactions. Mr. Oakes then explained to them that the hash oil was prescribed to relieve his pain and the money was obtained through Ontario Disability Support Program (Morton, 2000). Section 8 of the Narcotic Control Act (NSA), R.S.C. 1970, c.N-1 states that “Provided that those in possession of narcotics would be presumed to be in possession for the purpose of trafficking unless they proved otherwise, and would be convicted.” endnoteRef:1Due to this act David Edwin Oakes was convicted. David Oakes appealed the conviction to the Supreme Court of Canada and argued that the conviction and the NCA was a violation of section 11(d) of the Canadian Charter of Rights and Freedoms “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; The Supreme Court of Canada allowed the appeal acknowledging that it was in fact of violation of section 11 of the charter, and applied section 1 of the Charter to determine the conviction (Trakman, 1998). The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. In the end the Supreme Court of Canada created the Oakes test which states.   The government must establish that the law under review has a goal that is both “pressing and substantial.” The law must be both important and necessary. Governments are usually successful in this first step. The court then conducts a proportionality analysis using three sub-tests. The government must establish that the provision of the law which limits a Charter right is rationally connected to the law’s purpose. If it is arbitrary or serves no logical purpose, then it will not meet this standard. Secondly, a provision must minimally impair the violated Charter right. A provision that limits a Charter right will be constitutional only if it impairs the Charter right as little as possible or is “within a range of reasonably supportable alternatives” (Morton, 2000). Finally, the court examines the law’s proportionate effects. Even if the government can satisfy the above steps, the effect of the provision on Charter rights may be too high a price to pay for the advantage the provision would provide in advancing the law’s purpose.” 1:

Oakes test
This test was created in R. v. Oakes 1986 1 SCR 103. The Supreme Court altered it a while later in R. v. Edwards Books and Art 1986 2 SCR 713; all things considered the Court tended to thought of ‘disabling as meager as could be expected under the circumstances’ and permitted more adaptability to permit a sensible edge as opposed to an ‘exact line’ (Trakman, 1998). Since, the SCC has alluded to “edge of thankfulness” to permit lawmaking body some space to set the level of hindrance. To begin with, the target to be served by the measures constraining a Charter right should be adequately imperative to warrant abrogating an intrinsically secured right or flexibility.
Second, the gathering conjuring s. 1 must demonstrate the way to be sensible and obviously legitimized. This includes a type of proportionality test including three vital parts. To start, the measures must be reasonable and not subjective, painstakingly intended to accomplish the goal being referred to and normally associated with that goal. What’s more, the methods ought to hinder the privilege being referred to as meager as could be allowed. Ultimately, there must be proportionality between the impacts of the restricting measure and the goal – the more extreme the pernicious impacts of a measure, the more critical the target must be (Weinrib, 1986).
The Court was consistent in holding that the move in onus abused both Oakes’ segment 11(d) rights and in a roundabout way his segment 7 rights, and couldn’t be defended under area 1 of the sanction. This was on the grounds that there was no normal association between fundamental ownership and the assumption of trafficking, and along these lines the move in onus is not identified with the past test to area 11(d) of the contract (Morton, 2000). The Court depicted the extraordinary criteria under which rights could be legitimately restricted under area 1. The Court distinguished two primary elements of segment 1. To start with, “it ensures the rights which tail it” and besides, it “expresses the criteria against which defenses for confinements on those rights must be measured” (Trakman, 1998).
The key estimations of the Charter originate from the expression “free and fair society” and ought to be utilized as “a definitive standard” for understanding of segment 1 (Morton, 2000). These incorporate values, for example, regard for the innate nobility of the human individual, duty to social equity and correspondence, convenience of a wide assortment of convictions, regard for social and gathering character, and confidence in social and political organizations which improve the interest of people and gatherings in the public eye. Sanction rights are not total and it is important to point of confinement them so as to accomplish “aggregate objectives of essential significance”.
The Court exhibits a two stage test to legitimize a constraint in light of the examination in R. v. Huge M Drug Mart. Initially, it must be “a goal identified with concerns which are squeezing and considerable in a free and equitable society”, and second it must be demonstrated “that the methods picked are sensible and obviously legitimized”.
The second part is portrayed as a “proportionality test” which requires the conjuring gathering to appear: In the first place, the measures received must be deliberately intended to accomplish the target being referred to. They should not be discretionary, uncalled for or in light of silly contemplations (Weinrib, 1986). To put it plainly, they should be judiciously associated with the target. Second, the methods, regardless of the possibility that normally associated with the target in this first sense, ought to hinder “as meager as could be allowed” the privilege or opportunity being referred to. Third, there must be a proportionality between the impacts of the measures which are in charge of restricting the Charter right or opportunity, and the target which has been recognized as of “adequate significance”.
In applying this test to the realities the Court found that area 8 does not breeze through the levelheaded association test as the “ownership of a little or insignificant amount of opiates does not bolster the induction of trafficking … it is nonsensical to construe that a man had a purpose to activity on the premise of his or her ownership of a little amount of opiates.” Therefore, segment 8 of the Narcotics Control Act is infringing upon the Charter and is of no drive or impact.
The Canadian law connection to R. V Oakes case
Throughout the history of Canadian law there are many Supreme Court cases that have ignited a flame in different aspects of the law and have set precedents for similar cases in the future. R v. Oakes is a prime example of a case that effected and changed society’s views, policies, dynamics and foundations of law. This case brought Canadians to a new standard of society, policies and laws. Cases that have been influenced based on the R. v. Oakes test. This is a case that took place in 1996. The details of this case are; Olson was convicted of eleven counts of first degree murder in 1982. He was sentenced to life in prison with absolutely no chances of parole as he was sentenced for 25 years for each charge (Weinrib, 1986). I 1993 he was told by the assistant warden that he was being restricted from his access to the media in order to subside his new-found fame. A few months later he was told again that his restrictions were being effective immediately (Morton, 2000). No one with any attachment to the media was able to visit Olson any longer. The authorities went as far as obtaining the rights to seize all Olson’s letters reaching out to the media and discarding them. The authorities stated that they went to such extreme lengths in order to ensure there was no further torment for the victim’s families. Olson argued that the acts of the authorities was in fact a violation of Section 15 of the Charter of Rights and Freedoms which states that every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, color, religion, sex, age or otherdisability.
The Canadian Act of 1982 (UK)
Olson requested that he receive the same prerogative as any other media members. The authorities claimed that they had removed Olson of the right under Section 2 of the Charter of Rights and Freedoms which states freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.
In doing so, the authorities had to prove that their action to revoke Section 2 met the requirement of the Oakes test. In return the courts exercised Olson’s right in Section 2 of the Charter of Rights and Freedoms which says that anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 24(1) In 1995 after the trial had spiraled and continued for months, it was found that the act of the authorities didn’t pass the Oakes test. Olson was then reinstated with his rights to visitation and contact with the media as long as visitations and calls were supervised and recorded and all letters sent to the public were proof friend and approved by authorities.
Firstly, the policies designed for authority have been changed. The Oakes test caused police officers; lawyers etc. to go through different procedures when conducting arrests. Police officers are advised not to detain citizens on the grounds of a law that contradicts the Charter of Rights and Freedoms (Manfredi, 2007). If the government wants to develop a law that contradicts the charter they have to conjure up a valid reason for doing so. Though the government doesn’t purposely create laws that violate the charter, there are going to be some laws that will raise eyebrows. It is in these cases which the Oakes test must be applied and passed in order to do so. Prior to this case, people of authority had more leniencies when it came to enforcing rules and laws based on certain situations. As highlighted in the Olson v. Canada and the Vilven v. Air Canada cases the Oakes case was the stepping stone when it came to change. In today’s procedures, there are different ways to approach issues. The Oakes test has made new policies and rules that has formed new definition in rights for Canadian citizens, There can no longer be unjust acts made on account to certain situations (Morton, 2000). The Oakes test has caused many citizens to exercise Section 24 of the Charter. Inmates convicted of criminal acts tend to be the citizens most victimized of rules and laws that violate the Charter of Rights and Freedoms as demonstrated in the cases Sauve v. Canada and Olson v. Canada. The Oakes test gave inmates a better opportunity in being treated fairly and still being treated as citizens with their deserved rights as Canadians. The Canadian rules and laws aren’t made with malice, made to violate rights of the Charter. In most cases these rules aren’t made with the intention of short ending particular citizens. The repercussions of the Oakes test have also ignited changes in the Canadian Court System. The laws have been changed and the government has had to revise their actions in specific cases.
The Oakes test is utilized each time the administration tries to guard a confinement on the Charter privileges of Canadians. Some enactment has breezed through the test. For instance in R v Keegstra the Supreme Court held that a law against loathe discourse was a sensible and legitimate point of confinement on segment 2(b) of the Charter, flexibility of expression. The test gives a system to the courts to adjust, from one viewpoint, the administration’s capacity to accomplish its objectives and, on the other, the assurance of individual rights. This adjusting test is presently viewed as a foundation of Canadian sacred law (Morton, 2000).
At the Supreme Court, none of gatherings debated that Parliament planned the changes to s.161 (1) to work reflectively (KRJ at para 18). It was acknowledged by Justice Karakatsanis that Parliament expected the revisions to apply reflectively (KRJ at para 18). There were two fundamental inquiries to be chosen by the Court, abridged concisely by Justice Karakatsanis at passage 17 of her judgment (Manfredi, 2007).
Basically, in the event that one is gotten with any kind of opiates that is banned under the demonstration, they are attempted to be blameworthy of the ownership with the end goal of trafficking and that it is up to the litigant to demonstrate something else; switch onus condition.
The respondent for this situation, Oakes, guaranteed that area 8 of the NCA was an infringement of segment 11 (d) of the CCRF; Any individual accused of an offense has the privilege to be assumed blameless until demonstrated blameworthy as indicated by law in a reasonable and open hearing by a free and unbiased tribunal; Oakes appropriate to be assumed blameless until demonstrated blameworthy was abused by the turn around onus proviso in Section 8 of the NCA. In the end the courts upholder that Oakes’ rights under the Contract had been disregarded and that the demonstration must be revised. Shy of diving into all the fine points of interest that lead the courts to this choice, what is most critical is the way the Courts approached deciphering segment 1 of the CCRF so as to land at this conclusion.
Rights and flexibilities in Canada
The Canadian Charter of Rights and Freedoms ensures the rights and flexibilities set out in it subject just to such sensible limits endorsed by law as can be verifiably defended in a free and popularity based society. As indicated by the court, Section 1 of the CCRF has two capacities; “To start with it ensures the rights and opportunities set out in the arrangements which tail it; and second, it satisfies expressly the restrictive justificatory criteria (outside of the Constitutional Act, 1982) against which constraints on those rights and flexibilities might be measured.” Therefore, “The onus of demonstrating that a constraint on any Charter right is sensible and evidently defended in a free and popularity based society rest upon the gathering trying to maintain the impediment” or this situation it was on the legislature to demonstrate that it was defended in restricting Oakes appropriate to be viewed as pure until demonstrated blameworthy for trafficking opiates. The criteria put forward by the courts to how this is done are the thing that got to be distinctly known as the Oakes Test (Manfredi, 2007). The accompanying is a separate of the test that must be passed for any enactment that disregards the CCRF to be advocated.
The test is bargained of 2 stages;
Stage one: First Criteria for setting up if utmost is “sensible and obviously defended”
In this stage it must be exhibited that the “target” of constraining a directly under the CCRF is “of adequate significance to warrant abrogating a naturally secured right or flexibility”. There must be a squeezing social concern; “concerns which are squeezing and generous in a free and just society” that is gone for being eased by the infringement of the privilege or flexibility. The court expressed that the standard for this must be set high keeping in mind the end goal to maintain a strategic distance from “insignificant” interests to point of confinement ones rights or flexibility.
On the off chance that the target of the infringement is maintained, and it is turned out to be gone for lightening a squeezing social concern, we move to the second part of the test. On the off chance that the target of the infringement does not meet the criteria, the procedure stops and the enactment (in this specific case) is held to be in infringement and can’t be advocated.
Mention that the standard of evidence in this circumstance is NOT about “past a sensible uncertainty” which is basic to criminal court, yet that the level of evidence depends on a “dominance of likelihood”. The court decided that ideas, for example, “sensibility, reasonable and free and just society are basically not agreeable to such guidelines”
Inside the “general class of common standard, there exists diverse degrees of likelihood depending on the way of the case”. Basically, the bar is set high to demonstrate that something is of squeezing social concern and that the likelihood of these worries is the measure by which the objective must be weighed.
The Proportionality test a three stage procedure to build up if the confinement is “sensible and verifiably supported” (Morton, 2000).
Having passed the primary stage; noteworthy target of the constraint, the impediment is subjected to the accompanying three tests in this specific request. Vital to note that, “Despite the fact that the way of the proportionality test will fluctuate contingent upon the conditions, for every situation courts will be required to adjust the interests of society with those of people and gatherings

It was shown how the David Oakes case took effect. Section 3 of the Canadian Charter of Rights and freedoms states that “Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein” Canada Elections Act, R.S.C 1985, c. E-2 violates this right as it states “51. The following persons are not qualified to vote at an election shall not vote at an election: Every person who is imprisoned a correctional institution serving a sentence of two years or more;” The plaintiff argued that this Act failed the Oakes test and there was not a reasonable limit that could undermine the Charter. In the end the majority ruled Section 14 was in fact a violation of section 3 of the Charter of Rights and Freedoms and ruled in favor of Sauve. The R v. Oakes case sparked a flame in which caused the Canadian court systems to adjust the birth of new laws and acts that go against the Charter (Manfredi, 2007).
People who have power in a society often use and abuse their power to inflict and deter other members in society’s views on laws and justice. Powerful figures in society have set the views and outlooks on the use and distribution of drugs. The lack of knowledge on the medical needs for drugs is what birthed the Narcotic Control Act. The manipulations and violations of one’s rights and freedoms has caused great effects on today’s society, the dynamics of law and its policies. After the ruling in the R v. Oakes case society was forced to view the use of drugs in a different way for example… Not all use of drugs was in a negative way and not all large amounts of drugs are for distribution. The case’s effect on the society’s views on drugs in turn helped the ones in need of it. Rather than being judged and misunderstood for their need of medical use, it became more appropriated in society. This infamous case forced society to be more understanding.
Prior to the David Oakes case, the standard of Canadians in the aspects of society had a different dynamic on policies and laws and how they coincided with the Charter of Rights and Freedoms. Now almost four decades later it is prominent in Canadian law, how the Oakes test has taken its affect. This case set the precedents for all future cases with similar scenarios and provided guidelines in which the Government follows and takes into consideration while creating and enforcing laws. The case of R. v. Oakes started the process of the Oakes test (Manfredi, 2007). The Oakes test then went on to setting the tone set for millions of cases that followed. The Oakes Test is a three part test that has to be passed by the government, when passing new laws. Only after passing the three parts of the Oakes Test can the Government proceed with their desired actions. After this famous case there hasn’t been many ill run ins with violations with the Charter. The Canadian government has now done a thorough job in ensuring all the laws being creates have passed the Oakes Test. The NCA has since been adjusted and altered to be more fitted around the Charter. … Thanks to the R v. Oakes case the Canadian laws have been implemented and changed forever.
It is basic to note that for any measure/enactment that is associated with disregarding the CCRF, it must pass all the say stages and individual trial of stage 2. On the off chance that anytime, the measure flops any of the tests, the point of confinement can’t be legitimized. As said, the second stage tests must be followed in the grouping laid out.
In all cases, it is surrendered over to the gathering who wishes to restrict a people right or flexibility; in the Oakes case it was the legislature of Canada and the Ministry of Justice, to demonstrate that the constraint meets all the previously mentioned measures. Definitely the person who is asserting an infringement is in charge of showing how the said measure abuses their rights or flexibilities, yet the gathering who wishes to point of confinement them is the one that must demonstrate and meet every one of the conditions said.


Rothstein, M (2000) Section 1: justifying breaches of Charter of rights and freedoms R v Oakes
Merieux, Margaret (2001) Establishing the democratic credentials of the legislation: ‘R v Oakes’ and Section 4 of the Human Rights Act
Trakman, Leon E (1998) R v Oakes 1986-1997: back to the drawing board
R v Oakes, 1983 S.C.C.A No.368
Suave v Canada 1988 O.J No. 1766
Sumner, Leonard W. “The hateful and the obscene.” (2004).
Manfredi, C. P. (2007). Day the Dialogue Died: A Comment on Sauve v. Canada, The. Osgoode Hall LJ, 45, 105
Weinrib, L. (1986). The Supreme Court of Canada and Section One of the Charter Supreme Court Law Review, 10, 469
Morton, F. L., & Knopff, R. (2000) The charter revolution and the court party University of Toronto Press

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