Case Brief Wiki


The respondents were charged under s.394(1)(b) (now ss.394(2) and 394(4)), which stated that it is an offence to sell a rock with precious metal in it unless he proves that he is the owner, or an agent of the owner. This is an essential element of the offence, and puts a burden on the defendant to rebut their presumption of guilt. At trial the whole section was struck down as contrary to s.11(d) of the Charter and this was upheld at appeal.


  1. Is this section of the Code contrary to s.11(d) of the Charter?
  2. If it is, is it saved by s.1?


Appeal allowed in part; section reworded to place only an evidentiary burden on the accused.


The Court holds that the section obviously violates the Charter by imposing a presumption of guilt. Sopinka then details the s.1 Oakes test:

  1. in order to be sufficiently important to warrant overriding a protected right or freedom, the provision must relate to concerns that are pressing and substantial in a free and democratic society; and
  2. the means chosen to reach the objective of the provision must:
    1. be rationally connected to the objective;
    2. impair the right or freedom as little as possible; and
    3. have deleterious effects that are proportional to the salutary effects and the importance of the objective.

Applying the test to the case at bar, the provision in this case passed the first part, as it is concerned with preventing theft in society. Therefore, he moves on to the second part. He says that the provision is rationally connected to the objective, as the presumption is a logical method of accomplishing the objective – to prevent theft. However, the provision fails in the second part of step two, because Parliament could have impaired the right to a lesser extent. Instead of placing a full legal burden on the defendant and implementing a presumption, they could have just required them to show an evidentiary burden, that the Crown would then have to prove was wrong beyond a reasonable doubt. Further, the judge says that the provision fails the third part as well because the infringing of the presumption of innocence is more serious then the benefits. Therefore, the provision fails the Oakes test, and therefore it is not saved by s.1 and is unconstitutional.


  • You must pass all of the steps of the Oakes test in order for the provision to be saved by s.1 of the Charter.
  • It is fine to require evidentiary burdens from the accused, but it is not acceptable to require them to prove their innocence.