Does Breaching Bail Conditions Require a Subjective Mens Rea?

Introduction

Under the Canadian Charter of Rights and Freedoms, every individual has the right to be presumed innocent until proven guilty and not to be denied reasonable bail without just cause. When an accused is not released from custody by the police, the individual will be brought to a justice of the peace or judge for a bail hearing. An accused is usually released on his giving of an undertaking to attend trial, without any conditions restricting their activities or actions. However, conditions can be imposed if the crown satisfies the judicial official that particular restrictions are required to secure the accused’s attendance in court, ensure the public's protection or safety, or maintain confidence in the administration of justice.

Breaching bail conditions is a crime against the administration of justice and carries a maximum penalty of two years imprisonment. Accordingly, if a person is found not guilty of a crime for which they are accused, they may still be subject to imprisonment if they breached a bail condition.

Mr. Zora is appealing his conviction under s. 145(3) of the Criminal Code for failing twice to comply with his bail condition to answer the door when police went to his residence to check on his compliance with his bail conditions. With every criminal offence, the Crown must prove that there was an action or omission (actus reus) and that there was a simultaneous criminal intent (mens rea). In the case at bar, Mr. Zora committed the guilty act by failing to answer the door when police attended. However, in determining the type of fault or mental element that the Crown must prove to secure a conviction, is the mens rea for this offence assessed on a subjective or objective standard?

Mr. Zora was convicted at trial, and his appeal to the British Court of Appeal was dismissed. The Court of Appeal held that section 145(3) of the criminal code required an objective, not subjective, standard of mens rea, and concluded that Zora failed to meet the standard. The Crown had to prove that Zora’s failure to comply with his bail condition represented a “marked departure from what a reasonable person in the same situation would do,” not that Zora either intended to breach his bail condition, knew that he was breaching it, or was reckless as to whether he breached it or not. It is important to note that courts across the provinces did not provide for a unified standard.

Analysis

The Supreme Court of Canada's primary concern in this case is whether the mens rea for section 145(3) is subjective or objective.

A subjective fault standard would focus on what was in the accused’s mind when they breached their bail condition. Such a standard draws the court’s attention to whether the accused “actually intended, knew, or foresaw the consequences and/or circumstances as the case may be. Whether [they] ‘could’, ‘ought’ or ‘should’ have foreseen or whether a reasonable person would have foreseen is not the relevant criterion of liability. This would allow the court to consider personal circumstances and challenges of the accused in a manner that mirrors the individualized manner in which bail conditions are imposed.

An objective mens rea would lead to the question, is the accused’s behaviour a marked departure from the behaviour of a reasonable person subject to the accused’s bail conditions. This is based on what a reasonable person would know or do or have foreseen in the circumstances, and it does not matter if the accused does not know they were breaching their condition.

To make a determination, the court has set out its statutory interpretation to discern the fault standard that Parliament intended. Hence, the court outlines the case of R. v. A.D.H., which provides the long-standing context that Parliament intends crimes to have a subjective fault element. This reflects the underlying value in criminal law, that the “morally innocent should not be punished.”

Subjective fault is not an absolute rule, but rather it is the starting point that can be overridden by “clear expressions of a different legislative intent.” Hence, the court must determine whether there is a clear legislative intent to overturn the presumption of subjective fault. Given this, the question becomes, is the intention of Parliament to enact an objective mens rea standard?

According to Justice Martin, the wording in section 145(3) is neutral and does not create a duty-based offence with an objective mens rea. The Supreme Court has decided previously that subjective intent is required for similar offences of breach of probation. Additionally, the realities of the bail system further support the notion of a subjective mens rea to ensure that the individual characteristics of the accused are considered throughout the bail process.

Holding

Section 145(3) of the Criminal Code requires a subjective mens rea rather than an objective one.

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