Case study C:
Her Majesty The Queen
On the morning of January 13, 1996, Mr. Oakes was in an extremely good mood. He had just cashed his first unemployment insurance cheque and was on his way to meet his girlfriend whom he had started to go out within the last few weeks. Upon arriving at her apartment she asked him to carry for her ten small dark coloured vials containing an unidentified liquid which his girlfriend described as being perfume samples.
Upon leaving her apartment with his girlfriend, Oakes was arrested by the police and accused of possession of a narcotic contrary to the Narcotic Control Act.
At the police station Mr. Oakes was told that the vials which he thought were perfume samples contained cannabis resin in the form of oil. Since the police also found upon his person the proceeds of his cashed unemployment insurance cheque in the amount of $619.45, Mr. Oakes was accused of illegal possession of a narcotic for the purpose of traffic, contrary to Sections 4 (2) and 8 of the Narcotic Control Act.
At trial, Mr. Oakes testified with regard to the above-mentioned facts and did not call any evidence with regard to possession of the narcotic for purposes of traffic. The trial judge concluded that Mr. Oakes was in possession of a narcotic and that on the application of Section 8 of the Narcotic Control Act he was deemed to be in possession of the narcotic for purpose of trafficking. He was thus found guilty of the charge of possession and trafficking.
Mr. Oakes' lawyer decided to appeal to the Ontario Court of Appeal arguing
that the reverse onus provision of Section 8 of the Narcotic Control Act
is unconstitutional since it inconsistent with the presumption of innocence
which is guaranteed by Section I Id) of the Charter.
Issue to be decided
The relevant portion of Section 8 of the Narcotic Control Act reads
,,8. [Ilf the Court finds that the accused [was in possession of the narcotic]... he shall be given an opportunity of establishing that he was not in possession of the narcoticfor the purposes of traffic... If the accusedfails to establish that he was not in possession of the narcotic for the purpose of trafficking, the accused shall be convicted of the offence as charged..
Section I Id) of the Charter reads as follows:
,,]]. Any person charged with anoffence has the right(..
d) To be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal
The effect upon Mr. Oakes of Section 8 of the Narcotic Control Act is
that upon a finding beyond a reasonable doubt of possession of a narcotic,
Mr. Oakes bears the legal burden of proving on a balance of probabilities
that he was not in possession of a narcotic for the purpose of trafficking.
Mr. Oakes must therefore offer evidence, in order to disprove the presumption
of possession for the purposes of trafficking. If he is not able
to offer any such evidence, he will be found guilty of possession and trafficking.
Mr. Oakes' counsel argues that, interpreted in this fashion, section 8
constitutes a clear breach of Oake's constitutional right to be presumed
innocent until proven guilty beyond a reasonable doubt.
The Court held that Section 8 did indeed breach the accused's right to be presumed innocent until proven guilty beyond a reasonable doubt.
The Court was of the view that any provision which requires an accused
to disprove, on a balance of probabilities, the existence of a presumed
fact (possession for the purpose of trafficking), which is an important
element of the offence in question, violates the presumption of innocence
found at Section I I d) of the Charter. If an accused bears the burden
of disproving on a balance of probabilities an essential element of an
offence, it would be possible for a conviction to occur despite the existence
of a reasonable doubt. This would occur even if the accused offered
sufficient evidence to raise a reasonable doubt as to his or her innocence
but did not convince the jury, on a balance of probabilities, that the
presumed fact was untrue. Since an accused is entitled to an acquittal
if the prosecution fails to prove all of the elements of the offence beyond
a reasonable doubt, the presumption of innocence is breached by a statutory
requirement that an accused be compelled to prove by a balance of probabilities
that a presumed fact (the possession for the purpose of trafficking) is
untrue, rather than merely raise a reasonable doubt as to the truth of