• Document: IN BRIEF SECTION 1 OF THE CHARTER AND THE OAKES TEST SECTION 1 OF THE CHARTER. Ontario Justice Education Network. Section 1 reads as follows:
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Ontario Justice Education Network SECTION 1 OF THE IN BRIEF STUDENT HANDOUT CHARTER AND THE OAKES TEST SECTION 1 OF THE Charter issues are decided in the ordinary course of litigation. Any person whose CHARTER Charter rights are impacted is entitled The Canadian Charter of Rights and to raise a constitutional issue in a civil Freedoms, enacted in 1982, changed proceeding or as a defence to a criminal the law so that Canadians now have proceeding. Section 32 of the Charter constitutionally guaranteed rights states that the Charter only applies to that cannot be infringed unless the government action, and not to disputes government can show that such an between private individuals. As such, a infringement is demonstrably justified Charter claim typically arises when a party in a free and democratic society. (i.e. an individual or corporation) argues that some action by the government Section 1 of the Charter is often referred – either a specific provision of a law, a to as the “reasonable limits clause” law in its entirety, or a direct action by a because it is the section that can be used government agent – has infringed their to justify a limitation on a person’s Charter Charter rights. If a court finds that a law rights. Charter rights are not absolute and infringes a Charter right, the onus is on can be infringed if the courts determine the government to prove on a balance that the infringement is reasonably of probabilities that any limitation to justified. Section 1 of the Charter also Charter rights is justified under s. 1.1 protects rights by ensuring that the government cannot limit rights without justification. Thus, s. 1 both limits and guarantees Charter rights. Section 1 reads as follows: The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to 1 Section 1 is used to determine if legislation that breaches the such reasonable limits prescribed by law Charter is justified. Charter breaches in the criminal context involving state action (e.g. an unlawful search) do not proceed as can be demonstrably justified in a free to a s. 1 analysis. In these cases, once a Charter breach is found, the next question is that of remedy; in particular, whether or not and democratic society. evidence obtained illegally should be excluded under s. 24(2) of the Charter or if the proceeding should be stayed. ojen.ca © 2013 1 SECTION 1 OF Ontario Justice Education Network THE CHARTER AND THE OAKES TEST IN BRIEF LIMITATION OF The Case of R v Oakes CHARTER RIGHTS: THE David Edwin Oakes was charged with SECTION 1 ANALYSIS possession of drugs, and possession Once a Charter infringement has been found, with the intent to traffic. At the time the court will consider each step in a s. 1 of the trial, a person charged with analysis to determine if a law that infringes drug possession was automatically a Charter right can be saved. charged with possession with the intent to traffic. If a person was found A. Limits Prescribed by Law guilty of possession of drugs, s. 8 of the According to the wording of s. 1, the limitation Narcotic Control Act (NCA) (now called of any Charter right must be prescribed by law. the Controlled Drugs and Substances This means that the limitation must be legal, Act) placed the onus on the person and be part of a law, statute or regulation charged to prove that there was no that is within the jurisdiction of the level of intent to traffic. If the accused could government that passed it. The law must be not prove lack of intent, the accuse

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