Bail Conditions and Mens Rea - Noah Curle

In his 2017 song titled “Miss My Woe”, Radric Davis – better known by his stage name, Gucci Mane – sang, “Missing my woe/ Got money for bail, got money for bail/ Won’t stay in jail, won’t stay in jail”. Unfortunately, unlike Mr. Davis, there are many Canadian citizens who end up staying in jail shortly after posting bail because they have failed to comply with one of their bail conditions. A breach of a bail condition can become an indictable offence or result in a summary conviction under section 145(3) of the Criminal Code of Canada (“the Code”), which stipulates that “any person who is named in an appearance notice that has been confirmed by a justice…who fails, without lawful excuse, to appear at the time and place stated in the notice…is guilty”. However, one unclear aspect of the law is whether the Crown must prove there was subjective mens rea, or if they can simply rely on an objective standard when determining fault. In R v Zora (“Zora”), a recent decision by the Supreme Court of Canada (“the Court”), this controversy was soundly put to rest.

Failing to answer the door leads to questions of bail mens rea

In 2015, Mr. Zora was granted bail after being charged with possession of drugs for the purpose of trafficking. His bail order contained numerous conditions, including a curfew and a condition that he present himself at his front door within five minutes of his bail supervisor coming to check that he was following this curfew. On two separate occasions, Zora failed to show up at the door when someone came to check on him. He claimed that he was at home at the time and simply did not hear the doorbell ring because he was resting in his bedroom. As a result of the breach of his bail conditions, he was charged under section 145(3) for two counts of breaching his curfew and two counts of breaching his condition to answer the door.

During his initial trial, the trial judge acquitted him of the breach of curfew due to lack of evidence but found him guilty of breaching his condition to answer the door. On appeal, the summary conviction appeal judge reaffirmed the decision of the trial judge. In applying an objective fault standard, he found that Zora’s “behaviour was a marked departure from what a reasonable person would do to ensure they complied with their conditions” and the appeal was dismissed. Similarly, the appeal court found that applying an objective mens rea was appropriate when dealing with section 145(3) and again dismissed his appeal. However, when Zora was appealed again to the Court, it found that the mens rea for section 145(3) should be based on a subjective standard, not an objective one. A subjective fault standard would ask whether the accused actually intended or foresaw the consequences of his actions, rather than an objective standard which would ask whether a reasonable person in the position of the accused would have or ought to have known of the consequences. This finding was primarily based on the Court’s understanding of the underlying principles behind Parliament’s intent in criminalizing breaches of bail conditions.

The basic understanding of bail is that no conditions should be attached to the accused’s release unless there is just cause. This is established by section 11(e) of the Canadian Charter of Rights and Freedoms (“the Charter”). A “just cause” is considered anything which is enumerated under section 515(10) of the Code, which includes:

• securing the accused’s attendance in court;

• ensuring the protection or safety of the public; and

• maintaining confidence in the administration of justice.”

Parliament found it important to keep the scope of potential risk which could be considered a “just cause” narrow due to concerns that an overly broad policy could cause unjustified infringements to the liberty of the accused. This was a justified concern because an accused could be found guilty under section 145(3) of breaching their bail conditions, yet still be found innocent of their original crime. This implies that there are far reaching impacts on civil liberties and that, therefore, the courts must act with restraint in mind when deciding whether to apply bail conditions.

It follows from this that, if the courts have been mindful of the impact that bail conditions can have on the rights of the accused and yet even so have decided to impose these restrictions based on a “just cause” as enumerated in section 515(10) of the Code, then these conditions are serious enough that enforcing them should be justified for the purpose of deterrence. However, if deterrence is one of the main policy reasons which underlie Parliament’s decision to punish people for breaking their bail conditions, then the accused must actually be aware that the consequences of their behaviour could result in the breach of their bail condition. Using an objective fault standard, it is quite possible for an accused not to be aware that the consequences of their behaviour could result in a breach of their conditions, and yet they still be found to have possessed the required mens rea. This would not align with the parliamentary purpose behind punishing breaches of conditions. Therefore, since an objective mens rea would go against Parliament’s purpose, the Court in Zora concluded that Parliament must have intended the fault element of section 145(3) of the Code to be determined subjectively.

Further evidence for Parliament’s intention to enforce a subjective mens rea was demonstrated in Zora through the individualized bail process which Parliament has legislated. In this bail system, only conditions which address specific risks in the individual circumstance – such as the accused showing up in court, the protection of the public, and the maintenance of confidence in the administration of justice – are to be applied. As a result, bail orders are a highly individualized affair which would not lend themselves well to a “uniform societal standard to make sense of what standard of care is expected”. Instead, each case should be carefully analyzed through the lens of the specific risks which are present in the situation and through that the court will be able to determine the appropriate subjective standard of care. However, this is only possible if an objective mens rea is rejected in favour of a subjective one.

Ultimately, the Court in Zora found that the trial and provincial appeal courts had erred in law by applying an objective mens rea rather than a subjective standard of fault. The evidence against Zora breaching the bail conditions was not substantial enough to conclude that Zora would be found guilty under a subjective mens rea just because he was found guilty when an objective standard was applied, and so a new trial was ordered.

A step towards a fairer bail system

I think that the Court in Zora made a wise decision, and I believe that it will hopefully have some pretty important ramifications for the way that the legal system engages with certain marginalized groups. One of the issues with bail trials is that, due to the “timing and speed” of bail hearings, the accused will be either forced to represent themselves or be represented by counsel who is not given sufficient time to prepare. As a result, the accused will often agree to certain bail conditions that are overtly onerous and which impose an unwarranted duty on the accused. This harm disproportionately affects marginalized groups, such as those in poverty or those who suffer from a mental illness, because the harm from harsh bail conditions can exacerbate disadvantages that are already present. When you combine onerous conditions with objective standards of fault which do not account for the individual hardships that the accused may be exposed to, the result has been described as a “revolving door of pre-trial detention”.

When homeless people are forced to comply with conditions such as residency checks and alcoholics aren’t allowed to take a sip of alcohol, it feels like the system has set them up to fail. Under those conditions, regardless of whether or not the accused is found guilty of the original crime, they will spend time behind bars because of burdensome conditions which look to an objective standard of fault rather than a subjective one.

In this context, the precedent set by Zora provides some hope. By reaffirming that conditions to a bail order should only be applied when specific risks are in play, the chances of overly harsh conditions has been dampened, demonstrating the Court’s efforts to uphold the right undder section 11 not to be denied reasonable bail without just cause. Furthermore, the subjective mens rea framework set out in Zora will hopefully enable the justice system to make fairer and more rational decisions concerning breaches of conditions under section 145(3) of the Code. Time will only tell how the lower courts will interpret this decision, but this is certainly a step in the right direction as our courts continue to discern how to best support the more disadvantaged members of our society.