Crim Summary

Topics: Law, Common law, Tort Pages: 10 (3281 words) Published: April 22, 2013
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; it’s just on a balance of probabilities like in civil * Application
* Part 1 of test met – drug trafficking is serious concern and state has international obligation to prosecute traffickers * Part 2 of test is not met b/c first branch of reasonableness test failed – it wasn’t internally rational to presume that someone caught with any amount of any drug intends to traffic it * It wasn’t internally rational to SCC based on their gut instincts – they didn’t look at statistics or surveys/data; they just used their own common sense that it was possible for lots of ppl caught with small amounts of drugs on them who wouldn’t have opportunity to prove their innocence beyond a reasonable doubt ACTUS REUS CASES

R v. Instan
* A charged w killing aunt
* A is 30-40 yo, unmarried, unemployed
* Had been living w/supported by aunt
* Aunt was 70 yo, healthy, able to take care of herself * Before death aunt got gangrene in the leg, couldn’t take care of herself; only A knew * A did not give food or medical assistance to aunt although or give notice to any neighbours * Cause of death: exhaustion caused by gangrene but accelerated by neglect, want of food, nursing, etc; died at home while A still living there * A argued no evidence that she had legal duty to give food/nursing etc to aunt * ISSUE: whether A had legal duty to care for aunt

* DECISION: Conviction affirmed
* Not every moral obligation leads to legal duty, but every legal duty is founded on moral obligation * Instrumentality principle: A was the only vehicle through which aunt could be aided * Implied undertaking principle: A owed an implied undertaking to take care of aunt since she was being originally taken care of by aunt * Clear duty on A to do what was necessary to sustain aunt * It was only through A that aunt could get food, therefore common law duty on A * Even if failure of A...
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