Breach of Recognizance: Zora

A defendant is charged with a criminal offence, such as a domestic assault, and released with bail conditions. The police allege that the defendant has breached those conditions; he is arrested and charged under s.145(3) of the Criminal Code. Most recently, the Supreme Court of Canada has released a decision regarding what the mens rea is for a breach of bail conditions, the level of fault that the Crown has to prove in order for a person to be found guilty of the offence. Before the Supreme Court’s decision in R. v. Zora, courts across the country treated the level of fault differently.

This case is significant for a defendant because it clarifies the mens rea for the offence (and outlines what the Crown will have to prove), but also it provides some helpful comments about imposing bail conditions and reiterates the principle of restraint when imposing conditions in the bail context.

Briefly, Mr. Zora was charged with drug offences and was placed on bail conditions pending his trial. Twice, when the police conducted a door knock on his house, he failed to answer the door (pursuant to his conditions). He was charged with breaching his curfew (given the time of day the police attended) and breaching the requirement for him to present himself at the door of his residence within five minutes of police conducting a compliance check at his house. At trial, defence evidence established that the location of his bedroom made it difficult to hear the doorbell or knocking on the door. After being charged with the breaches, the accused set up an audio-visual system to alert him to police checks and he slept in a different part of the residence. He was not charged again with breaching his conditions. The trial judge acquitted him of the curfew violation but convicted him of failing to appear at the door.

Appeals to the BC Supreme Court and BC Court of Appeal were dismissed. The Court of Appeal noted that Parliament did not specify the type of mens rea applicable for s.145(3) but concluded that because s.145(3) was a duty-based offence and that the bail provisions were focused on alleviating risk, Parliament’s intention was to create an objective fault standard. Thus, if there was a reasonable doubt that a reasonably prudent person would not have foreseen or appreciated the risk or could have done something to prevent the breach, an accused should be acquitted, otherwise, he would be convicted. In the circumstances, the Court of Appeal upheld his convictions.

The Supreme Court, in a unanimous decision, determined that the required fault element for breach offences under s.145(3) is one of subjective mens rea, establishing that the accused breached a condition of bail knowingly or recklessly.

The Court noted that the presumption of criminal offence is a subjective mens rea, unless there is a clear intention from Parliament to overturn that presumption. Any ambiguity in Parliament’s intention means that the presumption of a subjective fault element is not displaced. The Court held that the text and context of s.145(3), as well as when looking at the context of other breach offences (of probation), that Parliament’s intention was to establish a subjective fault element, not an objective mens rea. The Court specifically rejected the Court of Appeal’s finding that breaches under s.1454) were duty-based offences.

What does this mean for an accused person charged with offences under s.145(3)? What this means is the Crown will not have to prove the following:

1. The accused had knowledge of the conditions of their bail order or were wilfully blind to those conditions; and

2. Either the accused knowingly failed to act according to the bail conditions or they were wilfully blind to those circumstances and failed to comply despite that knowledge, or the accused recklessly failed to act according to the conditions.

In this case, if an accused genuinely forgets a condition or does not know that he is breaching his condition, the Crown may not be able to prove that he has the required level of fault. Breach charges can be quite serious because they can become separate entries on someone’s criminal record, can involve a sentence of incarceration if convicted, and can have implications in the future if an accused were to commit further offences. Even if a person is acquitted of the substantive offence, they may still face legal consequences for breach charges. Therefore, it is incredibly important to seek out legal advice when charged with any offences, including breach offences under s.145(3) of the Criminal Code.

A second aspect of the Supreme Court’s decision in Zora is the Court’s general comments regarding bail and the imposition of bail conditions. The Court followed up on its decision from R. v. Antic, another recent seminal bail decision. In Zora, the Court reiterated that the bail provisions operate against an individual who is presumed innocent and has specific protections under the Charter to not be denied bail without just case. As such, courts must exercise restraint and only impose conditions that are tailored to the specific risks posed by the accused. The Court noted the following:

In practice, the number of unnecessary and unreasonable bail conditions, and the rising number of breach charges, indicates insufficient individualization of bail conditions. The majority of bail orders include numerous conditions of release which often do not clearly address an individual accused’s risks. A culture of risk aversion contributes to courts applying excessive conditions. The expeditious nature of bail hearings generates a culture of consent which aggravates the lack of restraint in imposing excessive bail conditions and encourages accused persons to agree to onerous terms of release rather than run the risk of detention.

This commentary and recognition are so important given the rise of breach allegations and as the Court explained that this is disproportionately impacting vulnerable and marginalized populations. The Court noted that these onerous conditions often impact those who are living in poverty, dealing with addictions or mental illness, and disproportionately Indigenous people.

The Court provided guidance to justice participants, including Crown attorneys, defence lawyers and judicial officers that each bail condition must mitigate a risk that would otherwise prevent release, and they must be not only sufficiently linked to that risk but narrowly defined as possible so as to be minimally intrusive on the individual.

As a defence firm, we routinely see the pressure in our bail system to impose significantly onerous conditions on an accused person – house arrest or curfews, reporting conditions, required attendances at programming or services, non-communication orders preventing access or custody of children, etc. This is not the way that an enlightened and liberal bail system should be operating, and yet, a risk for any accused person is that if you do not consent to those conditions you may be detained in custody to await your trial. If an accused person does agree to such conditions, it puts them at greater risk of not being able to follow those conditions given how onerous they are, especially when we consider that this often is placed on vulnerable and marginalized individuals who are facing many internal struggles. This creates a vicious cycle of accused being wrapped up into the criminal justice system for years, accumulating more convictions for breaches than for substantive offences. The justice must do better for those coming before it. R. v. Zora is a reminder of this obligation.


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