The Supreme Court of Canada recently ruled that in order to be considered guilty of breaching bail conditions, people must be consciously aware that they are doing so.  Although this may seem a somewhat obvious point, the circumstances in the case of R. v. Zora suggest that whether one is aware that they are breaching their bail conditions can be more complex than one might think.

Imposing Bail Conditions

In Canada, someone who has been arrested and charged with a crime is presumed innocent until proven guilty. This is why in most cases, arrested suspects are freed on bail before the trial occurs (with most exceptions being related to concerns for the safety of the public or the safety of the accused). The default form of bail for most crimes is for the accused to be released on the promise to attend the trial, without any other conditions imposed. However, bail conditions may be imposed if they are deemed both necessary and reasonable for such reasons as securing the accused’s attendance in court, ensuring the protection or safety of the public, or maintaining the public’s confidence in the Canadian criminal justice system.

If bail conditions are imposed on the accused, it is actually a criminal offence to breach those conditions. If the accused does breach their bail conditions, they could be charged under s.145(3) of the Canadian Criminal Code as a separate offence from the original crime he or she is charged with. As is the case under Canadian criminal law, however, in order to be found guilty of a crime – including breaching bail conditions – the Crown must prove that the accused had the necessary criminal intent (known as the “mens rea”) to commit the crime.

In the case of R. v. Zora, the accused was charged with drug offences and was granted bail with certain conditions. These conditions included both a 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. On two occasions, the accused failed to present himself at his door when police came calling, and so he was charged with two counts of breaching his curfew and two counts of breaching the condition to answer the door within the required five-minute time period.

Mens Rea

The irony was that Mr. Zora was actually home on both occasions and was in compliance with his curfew order. The problem was, as Zora would testify, that he didn’t hear the police ring the doorbell or knock on the door. He was in his bedroom both times the police came calling and was able to provide evidence of how difficult (if not impossible) it was for him to hear someone at the door under those circumstances. At trial, Mr. Zora was acquitted of the two counts of breaching the curfew but convicted of the two counts of breaching the condition to answer the door within five minutes of the police coming to call. The matter was appealed and made it all the way up to the Supreme Court of Canada.

The Supreme Court quashed the convictions and ruled that there should be a new trial for Mr. Zora. The Court ruled that the mens rea, in this case, needed to be subjective, rather than objective. In other words, the Supreme Court ruled that the Crown needed to show that the accused person on bail person actually knew they were breaching the bail condition in order to find them guilty (or at the very least, were somehow reckless in committing the breach). If an objective mens rea standard applied, then that would mean the Crown would just have to prove that the accused ought to have known that the police would have been coming to check on him on either of those two particular occasions, because that’s what the “reasonable person” would have done in those circumstances.

Instead, the Supreme Court has ruled that for s. 145(3), it is necessary to prove that the accused was actually aware (from his or her own subjective knowledge) that he or she was breaching the condition. In this case, it would mean demonstrating that Mr. Zora knew that the police were at the door but didn’t bother to go an answer it within five minutes (whether that was because he declined to answer the door despite hearing a knock or doorbell, or because he wasn’t at home breaking the curfew – which would make him guilty of the other two counts of breaching the condition of the curfew).

Setting Bail Conditions

The Supreme Court also provided guidance in their decision on how bail conditions should be set. If there are conditions set on bail (which ideally shouldn’t be the case to begin with), there should be as few as possible, and they should be clear, necessary, and match the risk of the situation. Courts should be careful not to set bail conditions that a person cannot reasonably meet. In the Zora case, the bail conditions to impose a curfew might seem reasonable, but the way the police executed the curfew check posed problems for the accused.

In the month between Zora’s release from custody and the time he was charged with the offence of breaching the bail condition, the police didn’t come to his house to check every day to check his compliance with the curfew. They did so nearly every day in that period, but not doing so on certain days still sets the precedent that there would be at least some days when the police would not check on the curfew, which would mean it would be reasonable for the accused to think that he hadn’t missed a particular check on a certain day but rather that it was another day where the police just didn’t come by at all. Furthermore, the police arrived at different times in the evening each time they did arrive to check his compliance with the curfew, which would increase the uncertainty of knowing if or when they would call (or had called).

Our criminal defense lawyers can advise on how best to protect your rights and defend you in court, including for cases involving bail conditions. We defend individuals charged with a variety of offences, including assault, drug offences, corporate crime, fraud and homicides. Contact Hicks Adams LLP in downtown Toronto to discuss the options available to help you through this time. Call us at 416-975-1700 or contact us online to schedule a confidential consultation.