Overview
Z was charged with drug offences and was granted bail with conditions, including curfew and a requirement that he present himself at the door of his residence within five minutes of a peace officer or bail supervisor attending to confirm his compliance with the curfew. Z failed twice to present himself at the door when police attended, and was charged under s. 145(3) of the Criminal Code (“Code”) with two counts of breaching his curfew and two counts of breaching his condition to answer the door.
The trial judge convicted Z on the two counts of failing to answer the door. Both the summary conviction appeal judge and the Court of Appeal dismissed his appeal, concluding that objective mens rea is sufficient for a conviction under s. 145(3) and that Z’s behaviour was a marked departure from what a reasonable person would do to ensure they complied with their bail conditions.
Verdict: Appeal allowed. The lower courts made an error in finding that s. 145(3) is an objective fault offence. Z’s convictions were quashed and a new trial ordered on the two counts of failing to attend at the door.
Judgement written by Justice Martin, for a unanimous (9 – 0) court.
What’s Changed?
Subjective fault is now required for a conviction under s. 145(3) of the Criminal Code. The components of the new mens rea under s. 145(3) are:
- The accused had knowledge of the conditions of their bail order, or were willfully blind to those conditions; and
- The accused either
- 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 willfully blind to those circumstances, and failed to comply with their conditions despite that knowledge; or
- 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.
Key Facts
- Mr. Zora was charged with three counts of possession for the purpose of trafficking.
- He received twelve bail conditions including a curfew and a requirement to present himself at the door when requested.
- On two evenings over thanksgiving weekend, 2015, he failed to present himself at his door when police came to check on him.
- He did not even notice he had missed the check-ins until two weeks later when he was charged.
- Zora, his mother, and his girlfriend all testified he was home that weekend. He testified that it would have been difficult to hear the door from within his bedroom.
What is Section 145(3) of the Criminal Code?
The section reads:
145(3) Every person who is named in an appearance notice that has been confirmed by a justice under section 508 or who is served with a summons and who fails, without lawful excuse, to appear at the time and place stated in the notice or the summons, as the case may be, for the purposes of the Identification of Criminals Act, or to attend court in accordance with the notice or the summons, as the case may be, is guilty of
- An indictable offence and liable to imprisonment for a term of not more than two years; or
- An offence punishable on summary conviction.
In practice, this section is used to criminally charge individuals who fail to comply with their bail conditions.
Section 145(3), like the rest of the Code sections that outline the bail system, must be consistent with the presumption of innocence and the right not to be denied reasonable bail under s. 11(e) of the Charter.
This section works in conjunction with s. 515 of the Code. Section 515 governs how judicial officials grant bail, establishes legal forms of bail, and requires that the conditions of bail are only as onerous as necessary to address the following risks:
- The risk of the accused not attending court
- Harm to public protection and safety
- Loss of confidence in the administration of justice
You can learn more about s. 515 and the “ladder principle” of restraint in bail by reading R v Antic.
Sidebar: Subjective and Objective Mens Rea
The Crown must prove both the mens rea (“guilty mind”) and actus reus (“guilty act”) of a criminal offence beyond a reasonable doubt to secure a conviction. The mens rea component of a charge can be either subjective or objective.
A subjective fault standard directs a court to consider whether the accused actually intended, knew or foresaw the consequences of their actions.
An objective fault standard is based on what a reasonable person would know, do, or have foreseen in the circumstances.
In this case, if s. 145(3) carried an objective standard, the accused could be convicted even if they did not know they were breaching their condition, so long as a “reasonable person” ought to have known.
There is a starting presumption that crimes are meant to have subjective fault unless Parliament indicates otherwise. It will only be overridden by text written into the law that demonstrates “clear expressions of a different legislative intent.” (see R v A.D.H)
Analysis
The Mens Rea of Section 145(3)
In the Court’s view, there is no reason in the text or context of the offence to suggest there was an intention by Parliament to give s. 145(3) a subjective fault requirement. Subjective intent is required for the similar offence of breach of probation. The text of s. 145(3) is neutral, not indicating whether they intended to impose subjective fault or objective fault.
It also does not create a duty-based offence as the Court of Appeal found. Duty based offences, failing to provide the necessaries of life (s. 215 of the Code) or undertaking dangerous medical procedures (s. 216) for example, are offences based on a failure to perform specific “legal duties arising out of defined relationships.” Duty based offences are a category of offence where there are policy reasons for an objective fault standard.
Furthermore, legal duties tend to impose a positive obligation to act in certain identifiable relationships, address a duty of a more powerful party towards a weaker party, and involve a direct risk to life or health if a uniform community standard of behaviour is not met. The obligation to not breach a bail condition is not comparable to the circumstances described in other duty based offences.
Finally, a subjective fault requirement is consistent with the overall legislative framework in the Code for reviewing and enforcing bail conditions. Specifically, it is consistent with:
- The penalties and consequences from conviction under s. 145(3);
- The role of s. 145(3) within the framework; and
- The restrained and individualized approach to granting bail and imposing bail conditions.
Restraint and Review: Necessary and Reasonable Bail Conditions and Section 145(3)
R v Antic set out the proper approach to the Code bail provisions, addressing the overuse of cash bail and sureties. The Court takes the opportunity here to provide further guidance on non-monetary conditions of bail and the serious consequences that follow their breach.
Section 145(3) illustrates how bail conditions become criminal offences. Each condition added to a release order limits the freedom of someone presumed innocent. If that weren’t enough, it also creates a new risk of criminal liability that could lead further to bail revocation or imprisonment.
The default position on bail outlined in the Code is simply bail without conditions. Restraint and the ladder principle require any additional bail conditions to be imposed only if they speak to the risks outlined in s. 515(10). Only conditions that speak to these risks are necessary, and must be tailored individually to the risk(s) being addressed.
Bail conditions must be reasonable, and cannot contravene legislation or the Charter. Conditions must be clear, minimally intrusive, and proportionate to any risk. They must also be realistically met by the accused.
The court lists several questions that may be helpful for judicial officers to ensure that the principles of restraint and review are followed:
- 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 s. 515(1)(c)? Does it address the specific risks posed by the accused’s release?
- What is the cumulative effect of all the conditions taken together?
Taken together with the criminal offence created by s. 145(3) and the possibility of bail revocation, judges must also consider the following:
- When considering whether a proposed condition meets a demonstrated and specific risk, is it proportionate that a breach of this condition would be a criminal offence or become a reason to revoke the bail?
How to Treat Specific Bail Conditions
The court takes the time to address certain problematic conditions habitually included in release orders.
First, conditions that may be directed to symptoms of mental illness. This includes alcohol and drug abstinence conditions for accused with addiction issues. For accused who cannot possibly abide by such a condition, it is not reasonable. It is also unreasonable to subject them to mandatory rehabilitation – unless it is necessary to address the accused’s specific risks.
Second, other behavioral conditions meant to rehabilitate such as attending classes will not be appropriate unless, again, they are necessary to address the risks posed by the accused.
Third, the condition to “keep the peace and be of good behaviour” is a required condition in probation orders, peace bonds, etc. but not for bail. It should be rigorously reviewed when proposed as a condition of bail. This condition adds a new layer of sanction to everything, from violating speed limits to dog leashing by-laws. It is not consistent with the presumption of innocence and is not sufficiently linked to risks posed by the accused.
Fourth, broad conditions requiring an accused to follow or be amenable to the “rules of the house” or follow the lawful instructions of staff at a residence may be problematic especially for accused youth. This condition is improperly vague, being based on the whims of whoever sets the rules. It also an improper delegation of the judicial function to a surety or anyone else, bypassing the obligation of the judicial officer that set the bail.
Finally, bail conditions that impact additional Charter rights of the accused, such as the requirement to submit to on the spot searches of their person or vehicles without warrant, should be subject to rigorous review, and are constitutionally suspect.
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