Crim Summary
BURDEN OF PROOF CASES
R v. Oakes (SCC 1986) * Narcotics Control Act s. 8 puts persuasive burden on A by saying A ‘shall’ (as opposed to ‘may’, so judge has no discretion) be convicted of intent to traffic if he doesn’t ‘establish’ that he didn’t intend to traffic * Therefore R has a lesser burden of proof, just needs to prove that A was in possession, and R could get charge for possession AND trafficking * this puts defence in position where they’ll have to put A on the stand, and they don’t like to do that because A are usually not credible witnesses, they don’t want A to be cross-examined and give up the rest of their criminal record which will make them look worse in eyes of judge/jury * A challenged that s.8 NCA violated s.11d POI * SCC says that society values POI * Test: POI (s.11d) violated if A must disprove, on balance of probabilities, an important element of the offence * Court says it’s a violation if statute imposes BOP on A with respect to an essential element of the offence * The BOP at issue is a persuasive burden because statute says A must ‘establish’ that… * If A doesn’t meet that BOP, this results in mandatory conviction, even though R hasn’t proven trafficking BRD * Note: when we refer to the Oakes Test, we’re talking about the s.1 analysis, not the s.11d analysis * S.1 can be used to salvage statutes that otherwise violate a charter right if * 1. State has important govt objective * 2. The means chosen to uphold objective is reasonable * A. reasonableness test * 1. There must be a rational connection btwn objective and means * 2. The constitutional violation only minimally impairs (least oppressive) the charter right * 3. There is proportionality btwn effects of provision and objective itself * standard of proof for s.1: * The BOP for s.1 is on the state generally * It is a persuasive burden but not BRD;
R v. Oakes (SCC 1986) * Narcotics Control Act s. 8 puts persuasive burden on A by saying A ‘shall’ (as opposed to ‘may’, so judge has no discretion) be convicted of intent to traffic if he doesn’t ‘establish’ that he didn’t intend to traffic * Therefore R has a lesser burden of proof, just needs to prove that A was in possession, and R could get charge for possession AND trafficking * this puts defence in position where they’ll have to put A on the stand, and they don’t like to do that because A are usually not credible witnesses, they don’t want A to be cross-examined and give up the rest of their criminal record which will make them look worse in eyes of judge/jury * A challenged that s.8 NCA violated s.11d POI * SCC says that society values POI * Test: POI (s.11d) violated if A must disprove, on balance of probabilities, an important element of the offence * Court says it’s a violation if statute imposes BOP on A with respect to an essential element of the offence * The BOP at issue is a persuasive burden because statute says A must ‘establish’ that… * If A doesn’t meet that BOP, this results in mandatory conviction, even though R hasn’t proven trafficking BRD * Note: when we refer to the Oakes Test, we’re talking about the s.1 analysis, not the s.11d analysis * S.1 can be used to salvage statutes that otherwise violate a charter right if * 1. State has important govt objective * 2. The means chosen to uphold objective is reasonable * A. reasonableness test * 1. There must be a rational connection btwn objective and means * 2. The constitutional violation only minimally impairs (least oppressive) the charter right * 3. There is proportionality btwn effects of provision and objective itself * standard of proof for s.1: * The BOP for s.1 is on the state generally * It is a persuasive burden but not BRD;