R. v. Zora, 2020 SCC 14
BREACH OF BAIL CONDITION - MENS REA - SUBJECTIVE FAULT - BAIL
“The purpose of s. 145(3), like the breach of probation offence, is to punish and deter failures to comply with bail conditions […] knowledge and deterrence are linked: an accused will only be deterred from breaching their conditions if they know they are doing something wrong, meaning they must know that they are bound by a particular bail condition.” (para 115)
What You Need to Know
THE MENS REA OR FAULT REQUIREMENT FOR BREACHING A BAIL CONDITION, UNDER S. 145 OF THE CRIMINAL CODE, IS ASSESSED SUBJECTIVELY.
THE CROWN IS REQUIRED TO SHOW, BEYOND A REASONABLE DOUBT, THAT THE ACCUSED KNOWINGLY OR RECKLESSLY BREACHED THE CONDITION (PARA 110).
This can be established by the Crown by proving:
The accused had knowledge of the conditions of their bail order, of they were wilfully blind to those conditions; AND
A. The accused knowingly failed to act according to their bail conditions, meaning that they knew of the circumstances requiring them to comply with the conditions of their order, or they were wilfully blind to those circumstances, and failed to comply with their conditions despite that knowledge; OR
B. The accused recklessly failed to act according to their bail conditions, meaning that the accused perceived a substantial and unjustified risk that their conduct would likely fail to comply with their bail conditions and persisted in this conduct.
NB: A brief primer on the law of bail, as well as subjective versus objective fault have been included at the the summary.
Facts and Procedural Background
Zora had been charged with drug offences and was granted bail with conditions, including a curfew as well as having to present himself at the door within five minutes of a peace officer or bail supervisor coming by to check on him. Twice, Zora failed to present himself. Zora was charged under s. 145(3) of the Criminal Code, which addresses the failure to comply with such conditions.
Zora submitted that it was difficult, if not in fact impossible, for him to hear someone ringing his bell or knocking on his door from his bedroom. At trial, the judge convicted him on two counts of failing to appear at the door, and a summary conviction appeal judge dismissed his appeal; the judge concluded that an objective standard for mens rea is sufficient for a conviction under s. 145(3) of the Code.
The Court of Appeal dismissed Zora’s appeal, with the majority stating that s. 145(3) requires an objective mens rea. The main issue at the Supreme Court of Canada was whether the mens rea is a subjective or objective standard.
Holding - Zora’s convictions were overturned, and a new trial was ordered for his two counts of failing to present himself.
Issue on Appeal - Subjective Mens Rea Analysis
Breaching bail is a criminal offence, and in the case at hand the Court is engaging in a discussion as to whether subjective or objective mens rea applies to the offence under s. 145(3) of the Code. In short, the Court is tasked with determining whether Zora, and others like him who breach their bail conditions, should be judged by a standard of what they ought to have known, or instead by a standard based on what they actually knew when the breach occurred.
The Court points out that under an objective mens rea approach, establishing guilt of the accused person would be a matter of comparing their behaviour to that of the reasonable person subject to the accused’s bail conditions; if the answer is yes, there was a marked departure from what the reasonable person would have done, then the accused would be found to have a “guilty mind”. However, under the subjective mens rea approach, the decision maker would have to consider if the accused actually knew of the breach or intended for it to occur; if not, then the individual cannot be said to have a “guilty mind”. In the view of the Court, the subjective fault standard is most consistent with Parliament’s intent as well as the current case law.
In the analysis, Justice Martin concludes that it was not Parliament’s intention to enact an objective mens rea standard, and rather that the difficult realities of the bail system in fact lend further support for a subjective mens rea standard, because there is careful consideration of each accused person’s characteristics when setting bail conditions. The argument is that if effort and emphasis is placed on accommodating an individual’s circumstances, that would directly contradict with an objective mens rea standard because it would compare the accused against the uniform standard of the reasonable person. Essentially, all the work going into individualizing an accused person’s bail conditions could effectively be washed out, thus going against Parliament’s intention to ensure those individual characteristics are taken into account throughout the entirety of the bail process.
Justice Martin also rejected the argument that breaching bail conditions amounts to a duty-based offence, which is one of the five categories of objective mens rea offences (para 39 of judgement). Though the accused person is obligated to follow their bail conditions, they are not duty-bound because there is no defined relationship by which a legal duty arises. This ties back to the idea that bail conditions are meant to be clearly articulated and specific in order to address to the threats posed by the accused person in question. The Court is making a point to distinguish duty-based offences, a limited category, from obligations placed upon an accused person in complying with their bail conditions.
If we remind ourselves that subjective mens rea is harder to establish, this starts to make sense. A higher standard is required to prove that an accused person knew they breached their bail conditions because, as the Court goes into at great length, charges and convictions stemming from breaches of bail conditions can have negative consequences in the long-term, such as accumulation of charges and prior convictions under s. 145(3) affecting future bail conditions. The Court also acknowledges that it is largely vulnerable and marginalized people who suffer the most from this cycle, and that breaches of most bail conditions do not automatically result in a threat to the public, as we see in the case of Zora
Justice Martin is unambiguous: “it is clear that s. 145(3) serves a distinct purpose, to deter people who knowingly or recklessly breach their bail conditions” (para 59 of judgement).
Pre-trial detention can negatively affect an accused person’s life, such as their employment and income, housing, and ability to fulfill their obligations as parents. As well, there are two mechanisms that address breach of bail conditions: s. 524 and s. 145(3). We’ve discussed s. 145(3), but s. 524 is how revocation of bail occurs, which means someone who doesn’t follow their bail conditions can have the bail revoked and then a re-assessment takes place to see if, and on what conditions, the accused can be released. As the Court points out at para 68, “Revocation can therefore address negligent and careless breaches of bail conditions without creating additional criminal liability” (emphasis added). In this way, if the breach is so significant, there is a way to address it and re-evaluate the bail conditions; s. 145(3) then serves an additional reinforcement purpose by allowing for criminal charges if bail conditions are breached.
Beginning at paragraph 78, the Court examines the “culture of consent”. Since bail courts have to work quickly and efficiently in order to minimize the time an accused person stays in pre-trial custody, this often impacts the bail conditions being set in the first place. The Court acknowledges that it can be hard to find counsel, how many accused persons are self-represented, and how little time duty counsel has to adequately prepare for bail hearings. All of this creates a stressful atmosphere where people may agree to bail conditions that are more strict than necessary in order to avoid having to remain in custody until their new bail hearing. The Court once again addresses how vulnerable and marginalized people, such as those living with mental illness, addictions, or in poverty, are more likely to suffer.
Necessary and Reasonable Bail Conditions and Section 145(3)
Para 82: “Each condition added onto a release order not only limits the freedom of someone presumed to be innocent, it creates a new risk of criminal liability, particularly to the accused, and may result in the loss of liberty, whether through bail revocation or imprisonment.”
The Court reminds us that breaching bail conditions brings an accused person in contact with s. 145(3) of the Code, a section which authorizes criminal charges and convictions which are separate from the crime the accused was initially charged with. This is to say that, in theory, someone could be found innocent of the crime they were charged with, but if they breached their bail and were convicted of doing so under s. 145(3), those charges or convictions will be on their record regardless: “Is it necessary and reasonable to impose this condition as a personal source of potential criminal liability knowing that a breach may result in a deprivation of liberty because of a charge or conviction under s. 145(3)?” (para 90).
Why is this case so important?
An excerpt from the Canadian Civil Liberties Association report, titled “Set Up to Fail: Bail and the Revolving Door of Pre-Trial Detention”, was also included in the judgement at paragraph 79:
Canadian bail courts regularly impose abstinence requirements on those addicted to alcohol or drugs, residency conditions on the homeless, strict check-in requirements in difficult to access locations, no-contact conditions between family members, and rigid curfews that interfere with employment and daily life. Numerous and restrictive conditions, imposed for considerable periods of time, are setting people up to fail — and failing to comply with a bail condition is a criminal offence, even if the underlying behaviour is not otherwise a crime. [p. 1]
In this judgement, there is incredible and lengthy discussion of how bail can affect marginalized and vulnerable groups. For example, it is stated that “if an accused cannot possibly abide by such a condition, then it will not be reasonable” (para 92 of judgement). This was said with reference to bail conditions that demand an accused person abstain from drug or alcohol consumption, something which is not possible for those living with addiction to do. As well, the Court explains that forcing rehabilitation for an accused person’s illness of addiction is not appropriate unless it is necessary in addressing the individual risk for that person’s conditional bail. The Court is making a point of emphasizing how bail conditions should always be reasonable and proportionate to the individual, and special care should be taken to consider the effects on marginalized and vulnerable people. The Court also recognizes that Indigenous people are one such group, as they are overrepresented in the criminal justice system and thus unreasonable bail conditions disproportionately affect them. Of course, this also applies to Black people, another group that is overrepresented in the system. Taken together, there is clear and undeniable recognition of the fact that onerous bail conditions have a disproportionate impact on already disadvantaged groups in particular, and that there is a need for uniformity across Canada to ensure fairness.
Bail conditions are a tool which, if not carefully considered, can be wielded against already marginalized individuals, further trapping them in cycles of interactions with the criminal justice system. It is of utmost importance to note that privilege plays a significant role, and the Court places the burden of ensuring bail conditions are reasonable on judicial officials. During this time in our history, it is necessary to openly acknowledge how the criminal justice system can exacerbate already existing inequalities and to make efforts to address that fact at every stage of the process. When disadvantage begins to compound further in the form of additional criminal charges from the stage of bail, where the accused person is still presumed to be innocent, then it is easy to see how the system can produce even further inequalities with little to no actual benefit. Reasonable bail conditions are a crucial part of the cycle, which this judgement has rightfully assessed in depth, and the outcome is a significant victory.
Read the full case here.
What is Bail? - A Brief Primer
Bail is important for many reasons, but primarily because of a person’s Constitutional rights as guaranteed by the Canadian Charter of Rights and Freedoms. Broadly speaking, one of the most powerful actions the state can take against an individual is to put them in detention because doing so deprives them of their freedom as guaranteed by the Charter. For example, Section 7 of the Charter guarantees the right to life, liberty, and security of the person, meaning the state cannot deprive us of that liberty unless there is a legal reason to do so. We hold the state to a very high standard, demanding that persons only be kept in detention if it is absolutely necessary or if they have been found guilty of a crime for which detention is the punishment.
Whenever a person is charged, it is presumed that they are innocent until proven guilty. As a result, the system operates under the assumption that the accused person in front of them may or may not be found guilty of the crime they are charged with. Section 11(e) of the Charter specifically addresses our right to not be denied reasonable bail without just cause. This section is important because it “entrenches the effect of the presumption of innocence at the pre-trial stage of the criminal trial process and safeguards the liberty of accused persons” (R v Antic, 2017 SCC 27, para 1).
As such, bail is one of the ways the justice system tries to uphold the foundational doctrine of “innocent until proven guilty”; an accused person should not be forced to remain in pre-trial detention unless there is a significant legal reason for doing so. Otherwise, the accused person should be released on bail with conditions which are “clearly articulated, minimal in number, necessary, reasonable, the least onerous in the circumstances, and sufficiently linked to the accused’s risks regarding the statutory grounds for detention in s. 515(10)” (para 3 of the intro before main judgement).
By default, bail is to be issued without any conditions attached, as is articulated in s. 515(1) of the Code. From that starting point, risks are assessed under s.515(10) of the Code to see if issues would arise should the accused person be released without bail conditions, such as if they are a flight risk, ensuring the public’s safety, or if their release is likely to result in the public’s loss of confidence in the justice system (para 83 of Zora judgement). As the Court explains in Zora, “only conditions which target those specific s. 515(1) risk(s) are necessary […] only the least onerous conditions to address that specific threat should be imposed” (Zora, SCC, para 84). Bail conditions depend on the crime the accused has been charged with, and bail can be revoked at any time if it is reasonable to do so as per s. 524 of the Code, such as if the accused person has or is about to breach their conditions, or if they’ve committed a crime while released on bail.
Bail conditions restrict and criminalize activity which would often otherwise be lawful. As a result, breaching those conditions is a crime for which the accused person can be charged and convicted. This means that every bail condition imposed on the accused person has the potential to become a source of criminal liability. In the case of Zora, his failing to answer his door twice in one weekend resulted in four separate criminal charges under s. 145(3); this is an example of how rapidly these charges can add up and create potential problems in the future (facts taken from para 57).
Over the years the law has evolved, and bail conditions have become more tailored to the individual, with both the Courts and Parliament recognizing that the same bail conditions can affect each person differently. What might seem to be a simple condition, such as not allowing a person to leave their house, might not be harsh for someone who lives in a cohesive family unit and has sufficient support. However, the same condition placed upon a separated parent with joint custody who needs to be able to contribute to taking care of their child might be a situation where a breach is more likely to occur and thus result in potential criminal consequences. When bail conditions are found to be insufficient or overly restrictive, bail can be revoked, and the conditions can be changed. Bail conditions are meant to recognize and take into account individuals’ circumstances to ensure they are not unnecessarily restrictive or harsh while still fulfilling the purpose of deterrence and ensuring the accused presents themselves in court.
Objective vs. Subjective Mens Rea - A Brief Primer
Mens rea is the Latin term for “guilty mind”, and in the criminal law context it is used to refer to the state of mind of the individual accused of a crime. In short, it is the mental fault element with regards to a person’s intention to commit a crime. It is impossible for us to peer inside the mind of the accused person and see what they knew or what they intended, but utilizing different legal tests and standards we can determine whether someone knew, or ought to have known, their actions were unlawful or would result in a criminal outcome. As such, each crime that necessitates a mental fault element to be established requires that the accused person be judged by one of the two standards of mens rea: either objective or subjective.
Objective mens rea assesses the accused person by the standard of one of the “reasonable person”. There is much discourse in the legal community as to who the reasonable person is, but it is conceptualized as the average person, someone of average intelligence, knowledge, and understanding who is standing “in the place” of the accused; put simply, the question is “what would the reasonable person have known if they were in the shows of the accused?” As a result, when the objective fault element is concerned, and it can be shown that the reasonable person would have known in their mind that what they did was a crime or would result in an unlawful outcome, then the accused person themselves ought to have known that their actions were criminal. In that case, the accused person would be found guilty. When objective mens rea is involved, it does not matter whether the accused in reality did or did not know what they were doing was a crime, but rather if they ought to have known.
By contrast, subjective mens rea is entirely focused on the accused’s actual state of mind. When the crime requires that the subjective fault element be established, it has to be shown that the accused person actually had knowledge that what they did was unlawful or would result in a criminal outcome; if this cannot be proven, then the accused person cannot be found guilty of the crime in question. Subjective mens rea is a higher threshold because it is harder to establish if the accused truly had a “guilty mind”.
If you are unfamiliar with the specifics of objective and subjective mens rea, you might assume that Parliament plainly sets out whether each crime that requires a mental fault element to be established in the Criminal Code is held to either a subjective or an objective standard. However, this is not always the case and oftentimes the Court is tasked with statutory interpretation, which is the process by which courts infer what Parliament’s intentions were when they created a law, in addition to analyzing the current state of the case law surrounding the issue in question.
Note: This post was written by Nadia Nadeem, a 3L at the University of Windsor Faculty of Law. Her interests include Constitutional, Mental Health, and Criminal law. Most recently, Nadia was part of Peter Sankoff’s 100 Interns Project where she had the opportunity to work on the potential use of habeas corpus applications in the civil litigation context. This post was copy edited by Sara Little.