State of Mind for Breaching Release Conditions
R v Zora
On June 18, 2020, the Supreme Court of Canada rendered its decision in the case of R. v. Zora. The appellant, Chaycen Michael Mr. Zora had been convicted at trial of two out of four breaches relating to his bail conditions. Mr. Zora’s first appeal on summary conviction was dismissed. Mr. Zora’s appeal to the Court of Appeal was also dismissed. Mr. Zora then appealed to the Supreme Court of Canada where his convictions were quashed, and a new trial was ordered.
Mr. Zora had been on bail for drug offences and was charged pursuant to section 145(3) in relation to two counts of breaching curfew and two counts of failing to appear at door when the police conducted a curfew check. At trial Mr. Zora argued that he was in his bedroom where he could not hear the door. The trial judge acquitted Mr. Zora on curfew breaches but convicted him on the two counts of failing to appear at the door.
Mr. Zora’s appeal to the Supreme Court of British Columbia was dismissed. The court held that objective mens rea is enough for a conviction under section 145(3). Mr. Zora showed a marked departure from the reasonable person trying to comply with bail.
Mr. Zora appealed the lower court’s decision. The Court of Appeal dismissed Mr. Zora’s appeal finding that section 145(3) is a duty-based offence only requiring an objective mens rea.
Issue for the Court
Is the mens rea for section 145(3) to be assessed on a subjective or objective standard?
The SCC allowed Mr. Zora’s appeal. His convictions were quashed, and a new trial was ordered for two counts of failure to comply with his release.
Justice Martin wrote the court’s decision. The court ruled that the Crown must prove mens rea on a subjective standard of whereby one breached knowingly or recklessly.
An accused must know their conditions in order to have the required mens rea for a failure to comply. Wilful blindness is a substitute for knowledge where the accused is deliberately ignorant. For a charge of failure to comply, to be wilfully blind, the Crown must prove that the accused knew there was a need for an inquiry but deliberately chose not to make such inquiries to know or confirm their conditions. This now means that an honest but mistaken belief about their conditions is a defence for charges of failing to comply. If the accused forgets a condition, then the Crown could not establish the requisite mens rea of the offence.
Recklessness, on the other hand, requires that an accused know the risk for not complying but continues to do so anyways (i.e. the accused must subjectively know the conditions in order to know the risk of breaching). The mens rea is not whether they ought to have known the risk. Their awareness of the risk must be to the level such that their conduct creates a “substantial and unjustified risk” of breaching so it does not include far-fetched, trivial or de minimis risks.
The SCC ruled the subjective mens rea required by section 145(3) will be satisfied when the following is proven beyond a reasonable doubt by the Crown:
- That the accused had knowledge of their bail conditions, or were wilfully blind to them; and
- That the accused knowingly did not follow their conditions, i.e. they knew of the requirement to comply or were wilfully blind to it and failed to comply despite that knowledge; or that they recklessly failed to follow conditions, i.e. they perceived a substantial and unjustified risk that their conduct would likely fail to comply with their conditions but persisted in this conduct anyways.
Such an approach is consistent with the principle of restraint and taking an individualized approach to bail and conditions.
The court engages in statutory interpretation in coming to their determination. The starting point is the presumption of legislative intention that offences have a subjective fault standard. This presumption is only rebutted by a “clear expression of a different legislative intent”. The court thereby concludes that ambiguity is not sufficient to displace this presumption, nothing exists in the offence to suggest a different intent as the language used is neutral, and that Parliament intended a subjective standard to apply. The exclusion or absence of words indicating a subjective intent such as ‘wilful’ or ‘knowing’ is not sufficient alone to rebut the presumption (indeed this is when the presumption will apply).
In its decision, the court reasoned that the fact that subjective intent is required for the similar offence of breach of probation, the high jeopardy faced by those convicted, and the fact that there is no uniform standard of care you can define for abiding by bail conditions (especially when they are meant to be highly individualized); all support a subjective standard. As reasonable bail is a protected right under section 11(e) of the Canadian Charter of Rights and Freedoms (‘Charter’), the court distinguishes it from voluntary activities such as driving or firearm ownership where an objective standard makes sense.
The court recognized the high jeopardy involved in breaches of bail. Various factors tend to heighten the severity of these offences. The penalty carries a two-year maximum sentence of imprisonment. They can lead to negative inferences being made at a future bail hearing for other offences. It carries the possibility of a conviction even if there is an acquittal on the substantive/index offence. A conviction on this offence necessarily adds to the accused’s criminal record. A reverse onus also applies for the accused to show cause in order to obtain bail again. Further, failure to comply charges criminalize normally lawful conduct. The court found that such factors support the presumption that Parliament intended a subjective fault element rather than the possibility of incurring such harsh consequences for inadvertent breaches.
The purpose served by the section is to punish and deter those who knowingly or recklessly breach their bail conditions. Criminal sanctions were not meant to be the main method of managing risk for those released on bail. Tools such as reasonable and individualized conditions that are the least onerous possible (principle of restraint) and associated mechanisms such as variation, reviews, vacating, and revocation may better allow for release on conditions with the desired result in behaviour without resorting to the currently overused breach charge. Revocation is a tool for risk management whereas a breach charge is meant to punish and deter as a last resort. Upon revocation, the court can decide (if the accused showed cause) whether the conditions are to remain the same or be changed while avoiding new charges on their record.
The court also briefly reviewed section 523.1 of the Criminal Code (judicial referral hearings) which came into force and became law on December 18, 2019. In cases where there was no harm caused to the victim (including property damage or economic loss) section 523.1 allows the Crown to have a judicial referral hearing where the conditions are reviewed and may result in no action, release on new conditions, or detention. Upon review, the breach charge must be dismissed/withdrawn. Considerations to be made in terms of risk include the nature of the harm, the social value in the risk, and how easily the risk could be avoided.
The court stated that convictions or criminal liability for failing to comply offences should only be used as a last resort for those intentional breaches that resulted in harm to which other measures such as review and revocation would be insufficient to address the concerns. As such, measures such as the judicial referral hearings discussed above should be used where appropriate before resorting to a charge or conviction of failure to comply.
In reviewing the research, the court found that despite the principle of restraint and individualized conditions, too many and too onerous conditions are often ordered resulting in the high occurrence of breaches before the courts. Given how quickly bail hearings run and what the court calls a “culture of consent” that further aggravates the problem of inappropriate conditions being imposed. Such findings rebut the argument made by some intervenors that because bail conditions are considered on an individualized basis at the outset upon imposition, that a subjective standard is not also required for breaches. (paragraphs 73-80)
The court gave greater clarity surrounding reasonable bail conditions by affirming/reinforcing the importance of the principle of restraint, using the least onerous conditions possible, and ensuring they are purposeful and directed towards risks. Because each additional condition is another potential ground upon which to incur criminal liability and usually for otherwise lawful behaviour, restraint should be exercised by all members in this process. Questions that should be asked to guide policy and assess conditions are:
- If released without conditions; would the accused pose any specific statutory risks that justify imposing any bail conditions?
- Is this condition necessary?
- Is this condition reasonable?
- Is this condition sufficiently linked to the grounds of detention under section 515(10)(c)?
- What is the cumulative effect of all the conditions?
- 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 section145(3)?
- Is it proportionate that a breach of this condition would be a criminal offence or become a reason to revoke the bail? (paragraphs 82-90)
The court emphasized that there are specific concerns in regarding conditions relating to mental illness including drug and alcohol addictions. It is not reasonable to include a condition the accused cannot follow or one that is not needed to address their individual risks. Further, conditions aimed at rehabilitating are not appropriate for bail unless needed to mitigate risk (for example conditions to attend school or counselling are generally not related to the allegation). The court cautioned the use of the condition to “keep the peace” for bail as it is not required and should be scrutinized if suggested as it may lead to criminal liability for minor occurrences. Conditions requiring an accused to follow house or residential rules can be difficult, especially for youth as they are often vague and subjective. There is also the general concern that a condition can have unforeseen consequences on safety such as not having a cellphone in an emergency, distancing people from their support networks for “red zones/no goes”, or encourage sharing of needles for paraphernalia prohibitions.
The SCC held that the Court of Appeal was in error when it applied an objective standard. The Court of Appeal utilized words such as “undertaking”, “recognizance”, “bound to comply”, and “fails” as indicators of a duty based objective standard. The court reasoned that the omission of a word such as “duty” (that might suggest objective standard) is a significant indicator when looking for Parliament’s intention as to the requisite mens rea required for the offence.
The presumption of a subjective mens rea in the absence of clear legislative intent to the contrary was not rebutted in this case.
Had Mr. Zora’s bail been revoked and had he shown cause, he may have been released on different or modified conditions to help better manage any risk without the added jeopardies of additional convictions for a fairly inconsequential breach.
Overall, this is a well-reasoned decision. It takes into account the realistic and day to day experiences of individuals. Humans are not infallible and may genuinely forget something, have a slip of the mind, or may make a trivial decision that can thus lead to harsh consequences that are often not proportionate to the breach made. This is especially so when one considers the demographics of those who are mainly affected by such conditions and who may not have the supports or ability to always follow their conditions.
The one problematic aspect of this decision that was that it seems to suggest that bail revocation is a better first option. While revocation may not lead to additional criminal liability/charges, revocation instead places someone in the face of the next most harsh option; the potential for detention should they not be able to show cause. One may wonder what their chances are at showing cause when the very reason they are before the courts is because they have breached and seems to presume that they have already shown they are not manageable on release. This appears to be an uphill battle for the accused. Greater use of the new Judicial Referral Hearings would be the best option to allow for review of the conditions to ensure they are appropriate all while avoiding placing an accused in a situation of an uphill battle of trying to show they are manageable in the community against the backdrop of having already breached conditions meant to ensure they are manageable. It seems backwards and counterintuitive to remove or alter someone’s conditions because they cannot follow it and may be viewed as some by having your cake and eating it too. As such, it would obviously be best that the correct and least onerous conditions are appropriately determined at the outset. However, as this decision makes clear, this is a pervasive issue such that it seems like a difficult long haul to have the entire justice system begin to take the principle of restraint and “reasonable” bail seriously.