The Oakes Test

R v Oakes is a precedent-setting court decision in the Canadian justice system. On December 17, 1981, David Edwin Oakes was arrested in London and charged with the possession of a narcotic with the intention to traffic. But the courts found that the assumption ‘the possession of drugs infers an intention to traffic’ was a violation of Oakes right to be presumed innocent until proven guilty — a protection every citizen enjoys under the Canadian Charter of Rights and Freedoms.

The court found that Oakes’ Charter rights had been violated because he had been presumed guilty. Instead of the presumption of his innocence, the charge of the intention to traffic them put a ‘reverse onus’ on him to prove his innocence instead of requiring the Crown to prove his guilt. As a result of the case, the ‘Oakes test‘ was developed to help courts decide when it is justifiable for the Crown to violate an individual’s Charter rights to be presumed innocent.

Susan Toth (@TothSusan), a practicing civil litigator at the firm of Polishuk Camman & Steele, is concerned that Ontario’s regulations for police stops (O. Reg. 58/16) might include insufficient safeguards for protecting citizens’ Charter rights. Susan joins us to explain, and to ask, ‘Do Ontario’s regulations on carding pass the Oakes Test?’

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