oakes v oakes

In this case, there is no gainsaying the gravity of the penalties meted out for violations of 29A.  

458 U.S. 576, 594]. (1987); Houston v. Hill,

Accordingly, I join Part I of JUSTICE SCALIA'S opinion holding that a defendant's overbreadth challenge cannot be rendered moot by narrowing the statute after the conduct for which he has been indicted occurred - the only proposition to which five Members of the Court have subscribed in this case. Footnote 1

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Section 8 of the Narcotic Control Act provided for a shift in onus onto the accused to prove that he was not in possession for the purpose of trafficking. Ferber,

"[W]e will not rewrite a state law to conform it to constitutional requirements."

JUSTICE BRENNAN, with whom JUSTICE MARSHALL and JUSTICE STEVENS join, dissenting. [491 And the argument is made that it is senseless to apply this doctrine when the protection of other conduct can no longer be achieved, which is the case when the statute has already been amended to eliminate any unconstitutional "chilling" of First Amendment rights. U.S. 1213 The majority concluded that 29A "criminalize[d] U.S. 601, 615 SCCInfoBox case-name=R. Alberta’s Bill 32, Charter Rights on Campus? See 1988 Mass.  

In Erznoznik v. City of Jacksonville, In Houston v. Hill, supra, at 464-466, we asked whether the sweeping nature of an ordinance making it a criminal offense to oppose, abuse, or interrupt a policeman in the performance of his duties was essential to achieve its ends, or whether a more narrowly tailored law could have attained the same objectives without abridging First Amendment freedoms to the same extent. I would affirm the decision of the Massachusetts Supreme Judicial Court. Of course, the penalties for violating 29A are high; in fact, however odd the underlying scale of values or predictions of deterrence may appear, the punishment for allowing a child to be photographed nude exceeds that for dissemination of matter harmful to minors, 272:28, and unnatural and lascivious acts with a child under 16, 272:35A, and includes a maximum prison term in excess of that for indecent assault and battery of a child under 14, 265:13B (20 years under 29A versus 10 years under 265:13B). forth in the margin, Art. The Oakes test was created by the Supreme Court of Canada in the 1986 case of R v Oakes. In that case, which similarly involved both a facial and an as-applied challenge to a statute that had been amended postconviction, the Court said: [ We have no choice but to accept these authoritative pronouncements in adjudging the validity of 29A. I have heard of a voidable contract, but never of a voidable law.

To the extent that the Commonwealth's interest does not justify the suppression of all protected conduct prohibited by the statute, we must further ask whether the law's overbreadth is "not only . 482 Massachusetts' interest in ending such conduct undoubtedly suffices to sustain the statute's ban on encouraging, causing, or permitting persons one has reason to know are under 18 years of age to engage in any live sexual performance or any act that represents sexual conduct, for the purpose of visual representation or reproduction.

[ 1899) was a wealthy industrialist and philanthropist in the Ames family of North Easton, Massachusetts. The arts flourish there.

  Because ] Bigelow v. Virginia, 2d 836, 838 (1988). In addition, the current version of 29A contains no exemptions. There is no cause to think children are less sensitive.

Gen. Laws 272:29A (1986) are plainly expressive activities that ordinarily qualify for First Amendment protection. by Gregory A. Loken; and for the Massachusetts Society for Prevention of Cruelty to Children et al. -502 (1987) ("Facial invalidation" of a repealed statute "would not serve the purpose of preventing future prosecutions under a constitutionally defective standard"). Upper Midwest Booksellers Assn. Ferber, supra, at 773-774, quoting Broadrick, supra, at 615-616.

The respondent, David Edwin Oakes, was charged with unlawful possession of a narcotic for the purpose of trafficking, contrary to s. 4 (2) of the Narcotic Control Act. We granted certiorari to review the decision of the Massachusetts Supreme Judicial Court,

1 Usually, the Crown must prove guilt beyond a reasonable doubt, but under the NCA it was up to the accused to prove that he was not guilty. If the statute is excessively overbroad, we have no choice but to strike it down on its face, notwithstanding its laudable objectives and its numerous permissible applications; if it is not, then Oakes and others charged under Sallenger v. City of Springfield, No.   2 critères : 1)Il doit y avoir un objectif réel et urgent ; 2)Les moyens doivent être proportionnels ; a.Les moyens doivent avoir un lien rationnel avec l'objectif ; b.Le moyen doit porter le moins possible atteinte au droit en question ; c.Il doit y avoir proportionnalité entre la restriction et l'objectif. -641 (1968). There is nothing constitutionally offensive about declining to reach Oakes' overbreadth challenge. . U.S. 576, 595] After we granted certiorari, 29A was amended.   conduct that virtually every person would regard as lawful," and would make "a criminal of a parent who takes a frontal view picture of his or her naked one-year-old running on a beach or romping in a wading pool." ] In considering a facial challenge of this kind, we have no reason to decide, of course, whether respondent's own conduct may legitimately be proscribed. Given that 29A is demonstrably overbroad, the next question is whether it fairly admits of a narrowing construction or whether offending portions of the statute might be severed, leaving its legitimate core prohibition intact. Assuming that it is unconstitutional (as opposed to merely foolish) to prohibit such photography, I do not think it so common as to make the statute substantially overbroad.

U.S. 383

1 prévoit des critères pour justifier les limites sur les droits et libertés garantis par la Charte. Google Chrome, (1988), and now vacate and remand.

Richard J. Vita argued the cause and filed a brief for respondent. The Court presents a two step test to justify a limitation based on the analysis in "R. v. Big M Drug Mart".

[1] As a result, it is […], Opt in to another list: Event Notification. [ -504 (1985).

The abundance of baby and child photographs taken every day without full frontal covering, not to mention the work of artists and filmmakers and nudist family snapshots, allows one to say, as the Court said in Houston v. Hill, 104, but its guilty verdict indicates that the exemptions were found to be inapplicable. 8 du Narcotic Control Act est inconstitutionnelle parce qu’elle va à l’encontre de l’art. JUSTICE O'CONNOR announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE, JUSTICE WHITE, and JUSTICE KENNEDY join.

("Facial overbreadth has not been invoked when a limiting construction has been or could be placed on the challenged statute"). U.S. 238 (1973) (works which, taken as a whole, possess serious artistic value are protected).

the body of material that would be covered is, as far as I am aware, insignificant compared with the lawful scope of the statute.

F : Concerne la constitutionnalité de l’art 8 du Narcotic Control Act, qui dit qu’une fois trouvé coupable de possession de drogue, il y a présomption d’une intention de traffick-er. Docket for Oakes v. Collier County, 2:20-cv-00568 — Brought to you by the RECAP Initiative and Free Law Project, a non-profit dedicated to creating high quality open legal information. The email address cannot be subscribed.

to Brief for Petitioner.

That is not unquestionably true. In 1981 David Edwin Oakes, a 23-year-old construction worker, was approached by police outside a tavern in London, Ontario. 87-1651 Argued: January 17, 1989 Decided: June 21, 1989.

The Massachusetts Supreme Judicial Court reversed the conviction. 29A. 482 Gen. Laws 272:29A(a) (Supp.

The Justice Department opposed the inclusion of this provision on the ground that "it would be difficult to determine by what standard the `sexual stimulation or gratification' could be assessed."   (1985).

Indeed, even if I were less confident that the statute was routinely violated by protected conduct - and the test, of course, is the relative frequency of such violations, not what we believe is the likelihood that such violations will in fact be prosecuted - I would reach the same conclusion. U.S. 569, 574

U.S. 569, 574


Of course the reason we are tempted to create such curiosities is that the overbreadth doctrine allows a defendant to attack a statute because of its effect on conduct other than the conduct for which the defendant is being punished, thus protecting the right to engage in conduct not directly before the court. A provision that limits a Charter right will be constitutional only if it impairs the Charter right as little as possible or is “within a range of reasonably supportable alternatives.”[4]. The possibility of a substantial number of realistic applications in contravention of the First Amendment, however, suffices to overturn a statute on its face. Thus, the scope of this statute has already been validated except as to nonpornographic depiction of preadolescent genitals, and postadolescent genitals and female breasts.

First, "it guarantees the rights which follow it", and secondly, it "states the criteria against which justifications for limitations on those rights must be measured".  

602, 605, 518 N. E. 2d 836, 838 (1988). The Oakes test is employed every time the government tries to defend a restriction on the Charter rights of Canadians.

The Government of Alberta is currently addressing what it perceives to be a balance too favourable for employees […], The Canadian Charter of Rights and Freedoms protects several foundational rights, but only from violations by the Canadian government, not by private individuals or bodies. *. ] The current version of 29A, codified at Mass. U.S. 205, 213 The acts proscribed by 29A are listed disjunctively, so it is impossible to ascertain which of those acts the jury concluded Oakes had committed. 416

Firefox, or The overbreadth doctrine serves to protect constitutionally legitimate speech not merely ex post, that is, after the offending statute is enacted, but also ex ante, that is, when the legislature is contemplating what sort of statute to enact.


The amount of protected conduct that occurs and quite plainly is covered by 29A is undoubtedly far greater than the speculative occurrences we found sufficient to establish substantial overbreadth in Erznoznik, where, in addition, the attendant penalties were puny by comparison.

8 du Narcotic Control Act est inconstitutionnelle parce qu’elle va à l’encontre de l’art. When we sit to review a decision resting on a state court's construction of a state statute, that construction is binding on us, regardless of whether in its absence we would have read the statute in the same way or would have pruned it back before passing judgment. After reviewing R. v. Oakes, supra, and R. v. Carroll, supra, Hart J.A. 3

0 JE SUIS D'ACCORD. U.S. 576, 598] members in the United States and Canada, further notes that family photographs taken by its members would subject them to possible prosecution, notwithstanding the protected character of their activity and their denial of any intrinsic connection between public nudity and shame. 487 406 U.S. 601, 615

Section 29A's most significant deterrent effect may well be on constitutionally protected conduct.

Id., at 818. Broadrick,

D: le fardeau renversé prévu dans l’art. 204, and of pornographic magazines that use young female models (to one of which the defendant here apparently intended to send his stepdaughter's photograph), I would estimate that the legitimate scope vastly exceeds the illegitimate. Internet Explorer 11 is no longer supported. Footnote 2


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