Chaycen Michael Zora Appellant v. Her Majesty The Queen, 2020 SCC 14

SUPREME COURT OF CANADA Citation: R. v.

Zora, 2020 SCC 14, [2020] 2 S.C.R. 3 Appeal Heard: December 4, 2019 Judgment Rendered: June 18, 2020 Docket: 38540 Between: Chaycen Michael Zora Appellant and Her Majesty The Queen Respondent - and - Attorney General of Ontario, Attorney General of British Columbia, Criminal Lawyers’ Association of Ontario, Vancouver Area Network of Drug Users, British Columbia Civil Liberties Association, Canadian Civil Liberties Association, Independent Criminal Defence Advocacy Society, Pivot Legal Society and Association québécoise des avocats et avocates de la défense Interveners Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.

Reasons for Judgment: (paras. 1 to 127) Martin J. (Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe and Kasirer JJ. concurring) Chaycen Michael Zora Appellant v.

Her Majesty The Queen Respondent and Attorney General of Ontario, Attorney General of British Columbia, Criminal Lawyers’ Association of Ontario, Vancouver Area Network of Drug Users, British Columbia Civil Liberties Association, Canadian Civil Liberties Association, Independent Criminal Defence Advocacy Society, Pivot Legal Society and Association québécoise des avocats et avocates de la défense Interveners Indexed as: R. v. Zora 2020 SCC 14 File No.: 38540. 2019: December 4; 2020; June 18.

Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ. on appeal from the court of appeal for british columbia Criminal law — Failure to comply with conditions of undertaking or recognizance — Elements of offence — Mens rea — Accused convicted of failure to comply with conditions of undertaking or recognizance after failing to answer door when police attended his residence — Whether mens rea for offence of failure to comply with conditions of undertaking or recognizance is to be assessed on subjective or objective standard — Criminal Code, R.S.C. 1985, c.

C-46, s. 145(3) . Z was charged with drug offences and was granted bail with conditions, including 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 his curfew. Z twice failed to present himself at his door when police attended, and was charged under s. 145(3) of the Criminal Code with two counts of breaching his curfew and two counts of breaching his condition to answer the door.

Z led evidence that he was in his bedroom where it would have been difficult, if not impossible, to hear the doorbell or someone knocking on the door. The trial judge acquitted Z on the alleged curfew violations but convicted Z on the two counts of failing to appear at the door. A

summary conviction appeal judge dismissed Z’s 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. The Court of Appeal dismissed Z’s appeal. A majority of the court concluded that s. 145(3) created a duty-based offence that only requires an objective mens rea . Held : The appeal should be allowed, Z’s convictions quashed and a new trial ordered on the two counts of failing to attend at the door.

Under s. 145(3) of the Criminal Code , the Crown is required to prove subjective mens rea . The Crown must establish that the accused breached a condition of an undertaking, recognizance or order knowingly or recklessly. Accordingly, a new trial is required on the two counts charging Z with failing to attend at the door of his residence, in light of the lower courts’ error of applying an objective standard of fault. The default form of bail for most crimes is release on an undertaking to attend trial, without any other conditions.

Bail conditions can be imposed , but only if they are clearly articulated, minimal in number, necessary, reasonable, the least onerous in the circumstances, and sufficiently linked to the accused’s risks regarding the statutory grounds for detention in s. 515(10): securing the accused’s attendance in court, ensuring the protection or safety of the public, or maintaining confidence in the administration of justice. The setting of bail conditions must be consistent with the presumption of innocence and the right not to be denied reasonable bail without just cause under s. 11(

e) of the Canadian Charter of Rights and Freedoms . In addition, s. 515 of the Criminal Code codifies the ladder principle, which requires that the form of release and the conditions of release imposed on an accused be no more onerous than necessary to address the risks listed in s. 515(10). Only conditions specifically tailored to the individual circumstances of the accused can meet the required criteria. Bail conditions are intended to be particularized standards of behavior designed to curtail statutorily identified risks posed by a particular person and are to be imposed with restraint.

Restraint is required because bail conditions limit the liberty of someone who is presumed innocent of the underlying offence and, through the offence in s. 145(3), create new sources of potential criminal liability personal to that individual accused. Section 145(3) of the Criminal Code creates a hybrid offence that applies to breaches of conditions imposed on an accused by a court order when the accused person is released prior to trial, while awaiting sentencing, or during an appeal. It is a crime against the administration of justice and carries a maximum penalty of two years’ imprisonment.

Accused persons may therefore be subject to imprisonment under s. 145(3) if they breach a condition of their bail, even if they are never ultimately convicted of any crimes for which

they were initially charged. In many cases, an accused person faces criminal sanctions for conduct which, but for the stipulated bail condition, would be a lawful exercise of personal freedom. Accordingly, the fault element under s. 145(3) has far-reaching implications for civil liberties and the fair and efficient functioning of bail in this country, and there is a direct link between what conditions may be imposed in a bail order and Parliament’s intent in criminalizing their breach under s. 145(3) . Determining the mens rea of s. 145(3) involves discerning the fault standard intended by Parliament.

The presumption is that Parliament intends crimes to have a subjective fault element unless there is a clear legislative intention to overturn the presumption. If the offence in the Criminal Code is ambiguous as to the mens rea , then the presumption has not been displaced. The text and context of s. 145(3) suggest that Parliament intended for subjective fault to apply. The wording in s. 145(3) is neutral insofar as it does not show a clear intention on the part of Parliament with regard to either the subjective or objective mens rea .

The absence of express words indicating a subjective intent cannot on its own displace the presumption of subjective mens rea . Furthermore, nothing establishes a clear intention to create a duty-based offence which calls for an objective mens rea . Duty-based offences are directed at legal duties very different from the obligation to comply with the conditions of a judicial order. And, unlike these duty-based offences, bail conditions do not impose a minimum uniform standard of conduct having regard to societal interests rather than personal standards of conduct.

Parliament legislated a bail system based upon an individualized process and the bail order is expected to list personalized and precise standards of behaviour. As a result, there is no need to resort to a uniform societal standard to make sense of what standard of care is expected of an accused in fulfilling their bail conditions and no need to consider what a reasonable person would have done in the circumstances to understand the obligation imposed by s. 145(3) .

In addition, the highly individualized nature of bail conditions excludes the possibility of a uniform societal standard of conduct applicable to all potential failure to comply offences. Bail conditions and the risks they address also vary dramatically among individuals on release, so it is not intelligible to refer to the concepts of a “marked” or “mere” departure from the standard of a reasonable person. The offence under s. 145(3) is not comparable to other objective fault offences, and reasonable bail cannot be compared to a regulated activity that is entered into voluntarily.

Further, the offence of failure to comply with bail conditions is similar to the offence of breach of probation for which a subjective mens rea is required. A subjective fault requirement is consistent with the penalties and consequences which flow from conviction under s. 145(3). A conviction has profound implications for the liberty interests of the offender, including imprisonment even if the offender is acquitted of the underlying charge or further conditions imposed as part of a sentence. A conviction under s. 145(3) creates or adds to that person’s criminal record.

Being charged under s. 145(3) also places a reverse onus on accused persons to show why they should be released on bail again. Previous convictions under s. 145(3) inform bail hearings for future offences and may lead to the denial of bail or more stringent bail conditions for future unrelated offences. Breach charges often accumulate quickly, leading to a vicious cycle of increasingly numerous and onerous conditions, more breach charges and eventually pre-trial detention. These serious consequences presuppose that the person knowingly, rather than inadvertently, breached their bail condition.

Parliament’s intention to require subjective fault is further demonstrated by the distinct purpose of s. 145(3), being to punish and deter those who knowingly or recklessly breach their bail conditions. Parliament did not intend for criminal sanctions to be the primary means of managing any risks or concerns associated with individuals released with bail conditions.

Such risks or concerns are to be managed through the setting of conditions that are minimal, reasonable, necessary, least onerous, and sufficiently linked to the accused’s risk; variations to those conditions when necessary through bail reviews and vacating bail orders; and bail revocation when bail conditions are breached. Charges under s. 145(3) are not, and should not be, the principal means of mitigating risk. Bail review is the primary way to challenge or change bail conditions.

Bail revocation under s. 524 of the Criminal Code and criminal charges under s. 145(3) work together to promote compliance with conditions of bail, but they serve distinct and different legislative purposes.

Section 524 fulfills a risk management role; s. 145(3) exists to punish and deter. Section 145(3) is a means of last resort when other risk management tools have not served their purposes. Specific deterrence has little or no effect if an accused does not know they were doing anything wrong. An accused must know what standard of behaviour to meet and that their conduct is failing to meet that standard in order to be deterred from engaging in prohibited conduct.

The requirement that bail conditions must be tailored to the accused points to a subjective mens rea so that the individual characteristics of the accused will be considered when bail is set and if bail is breached. Requiring a subjective mens rea reinforces, mirrors, and respects the individualized approach mandated for the imposition of bail conditions. In practice, the number of unnecessary and unreasonable bail conditions, and the rising number of breach charges, indicates insufficient individualization of bail conditions.

The majority of bail orders include numerous conditions of release which often do not clearly address an individual accused’s risks. A culture of risk aversion contributes to courts applying excessive conditions. The expeditious nature of bail hearings generates a culture of consent which aggravates the lack of restraint in imposing excessive bail conditions and encourages accused persons to agree to onerous terms of release rather than run the risk of detention.

Onerous conditions disproportionately impact vulnerable and marginalized populations, including those living in poverty or with addictions or mental illnesses, and Indigenous people. The presence of too many unnecessary, excessive and onerous conditions provides legislative context for finding no clear intention of Parliament to displace the presumed subjective fault standard for s. 145(3) and illustrates the need for restraint and careful review of bail conditions.

The principle of restraint and the ladder principle require anyone proposing bail conditions to consider what risks might arise if the accused is released without conditions. Only conditions which target the accused’s risk in relation to flight, public protection and safety, or maintaining confidence in the administration of justice are necessary. A bail condition must attenuate a risk that would otherwise prevent release without that condition. Conditions cannot be imposed for gratuitous or punitive purposes and should not be behaviourally-based.

They must be sufficiently linked to the defined statutory risks, as narrowly defined as possible to meet their objective, and reasonable. They will only be reasonable if they realistically can and will be met by the accused. They cannot contravene federal or provincial legislation or the Charter , and must be clear, minimally intrusive, and proportionate to any specific risk posed by the accused. The setting of bail is an individualized process and there is no place for standard, routine, or boilerplate conditions, whether bail is contested or the product of consent.

Some specific non-enumerated conditions are commonly included in release orders, but must be scrutinized to ensure that each condition is necessary, reasonable, least onerous and sufficiently linked to a risk in s. 515(10). All persons involved in the bail system are required to act with restraint and to carefully review bail conditions they propose or impose. The Crown, defence, and the court all have obligations to respect the principles of restraint and review. Ultimately, the obligation to ensure appropriate bail orders lies with the judicial official. These obligations carry over to consent releases.

Judicial officials should not routinely second-guess joint proposals by counsel, however, they have the discretion to reject overbroad proposals and must act with caution when reviewing and approving consent release orders.

Subjective mens rea under s. 145(3) can be satisfied where the Crown proves: (1) the accused had knowledge of theconditions of their bail order or were wilfully blind to those conditions; and (2) either the accused knowingly failed to act according tothe bail conditions or they were wilfully blind to those circumstances and failed to comply despite that knowledge, or the accusedrecklessly failed to act according to the conditions, meaning they perceived a substantial and unjustified risk that their conduct wouldlikely fail to comply with the conditions and persisted in this conduct.

Genuinely forgetting a condition could be a mistake of fact andwould negate mens rea. The accused need not have knowledge of the legal consequences or scope of their condition, but they must knowthat they are bound by the condition. Knowledge in the second component of the mens rea means that the accused must be aware of, orbe wilfully blind to, the factual circumstances requiring them to act or refrain from acting. The second component of the mens rea canalso be met by showing that the accused was reckless.

Knowledge of risk is key to recklessness — the accused must know of their bailconditions and the risk of factual circumstances arising that would require them to act (or refrain from acting) to comply with their bailconditions. Recklessness is a subjective standard and the accused must be aware that their conduct created a substantial risk of non-compliance with their bail conditions and aware of any factors that contributed to that risk being unjustified.

In the instant case, a new trial should be ordered in light of the error in law by the courts below in applying an objectiverather than a subjective standard of fault for s. 145(3). This is not a case where the curative proviso under s. 686(1)(b)(iii) of the CriminalCode applies — identifying the wrong fault standard is not a harmless or trivial error. A subjective mens rea would have required thetrial judge to consider Z’s state of mind, which clearly could have had an impact on the verdict. The evidence is not so overwhelmingthat a conviction is inevitable.

A new trial is therefore needed to address whether Z knowingly or recklessly breached his conditions. Cases Cited Referred to: R. v. Antic, 2017 SCC 27, [2017] 1 S.C.R. 509; R. v. Ludlow, 1999 BCCA 365, 125 B.C.A.C. 194; R. v.Tunney, 2018 ONSC 961, 44 C.R. (7th) 221; R. v. Pearson, (SCC), [1992] 3 S.C.R. 665; R. v. Morales, (SCC), [1992] 3 S.C.R. 711; R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328; R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250; R. v.Oakes, (SCC), [1986] 1 S.C.R. 103; R. v. Myers, 2019 SCC 18, [2019] 2 S.C.R. 105; R. v. Schab, 2016 YKTC 69, 35C.R. (7th) 48; R. v.

Prychitko, 2010 ABQB 563, 618 A.R. 146; R. v. Penunsi, 2019 SCC 39, [2019] 3 S.C.R. 91; R. v. McCormack, 2014ONSC 7123; R. v. Burdon, 2010 ABCA 171, 487 A.R. 220; R. v. Rowan, 2018 ABPC 208; R. v. Hundal, (SCC), [1993]1 S.C.R. 867; R. v. Creighton, (SCC), [1993] 3 S.C.R. 3; R. v. Naglik, (SCC), [1993] 3 S.C.R. 122; R. v.Custance, 2005 MBCA 23, 194 C.C.C. (3d) 225; R. v. Legere (1995), (ON CA), 22 O.R. (3d) 89; R. v. Lemay, 2018QCCS 1956; R. v. J.A.D., 1999 SKQB 262, 187 Sask. R. 95; R. v. Howe, 2014 NBQB 259, 430 N.B.R. (2d) 202; R. v. Mullin, 2003YKTC 26, 13 C.R. (6th) 54; R. v. Selamio, 2002 NWTSC 15; R. v.

Josephie, 2010 NUCJ 7; R. v. Ritter, 2007 ABCA 395, 422 A.R. 1; R.v. Loutitt, 2011 ABQB 545, 527 A.R. 212; R. v. Lofstrom, 2016 ABPC 197, 39 Alta. L.R. (6th) 367; R. v. Al Khatib, 2014 NSPC 62, 350N.S.R. (2d) 133; R. v. A.M.Y., 2017 NSSC 99; R. v. L.T.W., ; R. v. Companion, ; R. v. Hammoud,2012 ABQB 110, 534 A.R. 80; R. v. Qadir, 2016 ABPC 27; R. v. Osmond, 2006 NSPC 52, 248 N.S.R. (2d) 221; R. v. Brown, 2012NSPC 64, 319 N.S.R. (2d) 128; R. v. Foote, ; R. v. A.D.H., 2013 SCC 28, [2013] 2 S.C.R. 269; R. v. Sault Ste.

Marie, (SCC), [1978] 2 S.C.R. 1299; Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27; R. v. Holmes, (SCC), [1988] 1 S.C.R. 914; R. v. Moser (1992), (ON CA), 7 O.R. (3d) 737; R. v. Goleski, 2014BCCA 80, 307 C.C.C. (3d) 1, aff’d 2015 SCC 6, [2015] 1 S.C.R. 399; R. v. Santeramo (1976), (ON CA), 32 C.C.C.(2d) 35; R. v. Docherty, (SCC), [1989] 2 S.C.R. 941; R. v. Eby, 2007 ABPC 81, 77 Alta. L.R. (4th) 149; R. v. Bingley,2008 BCPC 245; R. v. Laferrière, 2013 QCCA 944; R. v. John, 2015 ONSC 2040; R. v. Bremmer, 2006 ABPC 93; R. v. Lacasse, 2015SCC 64, [2015] 3 S.C.R. 1089; R. v. Omeasoo, 2013 ABPC 328, 94 Alta.

L.R. (5th) 244; R. v. Parsons (1997), (NLCA), 161 Nfld. & P.E.I.R. 145; R. v. Morris, 2013 ONCA 223, 305 O.A.C. 47; R. v. Badgerow, 2010 ONCA 236, 260 O.A.C. 273; R. v.T.J.J., 2011 BCPC 155; R. v. Mehan, 2016 BCCA 129, 386 B.C.A.C. 1; R. v. Birtchnell, 2019 ONCJ 198, [2019] O.J. No. 1757 (QL); R.v. Coombs, 2004 ABQB 621, 369 A.R. 215; R. v. Murphy, 2017 YKSC 34; Ewert v. Canada, 2018 SCC 30, [2018] 2 S.C.R. 165; R. v.S.K., ; R. v. McDonald, 2010 ABQB 770; R. v. K. (R.), 2014 ONCJ 566; R. v. D.A., 2014 ONSC 2166, [2014] O.J.No. 2059 (QL); R. v. Pammett, 2014 ONSC 5597; R. v. Clarke, [2000] O.J.

No. 5738 (QL); R. v. Shoker, 2006 SCC 44, [2006] 2 S.C.R.399; R. v. Manseau, [1997] AZ-51286266; R. v. Denny, 2015 NSPC 49, 364 N.S.R. (2d) 49; R. v. Grey (1993), (ONCJ), 19 C.R. (4th) 363; R. v. D.R. (1999), (NL CA), 178 Nfld. & P.E.I.R. 200; R. v. Gosai, [2002] O.J. No. 359 (QL);R. v. Doncaster, 2013 NSSC 328, 335 N.S.R. (2d) 331; R. v. A.D.B., 2009 SKPC 120, 345 Sask. R. 134; R. v. Delacruz, 2015 MBQB 32;R. v. Tithi, 2019 SKQB 299, [2019] S.J. No. 299 (QL); R. v. Sabados, 2015 SKCA 74, 327 C.C.C. (3d) 107; R. v. Goddard, 2019 BCCA164, 377 C.C.C. (3d) 44; R. v. Nowazek, 2018 YKCA 12, 366 C.C.C. (3d) 389; R. v.

Singh, 2011 ONSC 717, [2011] O.J. No. 6389 (QL);R. v. A.D.M., 2017 NSPC 77; R. v. Singh, 2018 ONSC 5336, [2018] O.J. No. 4757 (QL); Pappajohn v. The Queen, (SCC), [1980] 2 S.C.R. 120; R. v. Edgar, 2019 QCCQ 1328; R. v. Smith, 2008 ONCA 101, 233 O.A.C. 145; R. v. Brown, 2008 ABPC128, 445 A.R. 211; R. v. Chen, 2006 MBQB 250, 209 Man. R. (2d) 181; R. v. Withworth, 2013 ONSC 7413, 59 M.V.R. (6th) 160; R. v.Syblis, 2015 ONCJ 73; R. v. Blazevic (1997), 31 O.T.C. 10; R. v. Hutchinson (1994), (AB KB), 160 A.R. 58; R. v.Nedlin, 2005 NWTTC 11, 32 C.R. (6th) 361; R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411; R. v.

Buzzanga (1979), (ON CA), 25 O.R. (2d) 705; Sansregret v. The Queen, (SCC), [1985] 1 S.C.R. 570; R. v. Hamilton, 2005 SCC 47,[2005] 2 S.C.R. 432; Leary v. The Queen, (SCC), [1978] 1 S.C.R. 29; R. v. Seymour, (SCC), [1996] 2S.C.R. 252; R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272. Statutes and Regulations Cited Bail Reform Act, S.C. 1970-71-72, c. 37, s. 133(3) [in R.S.C. 1970, c. 2 (2nd Supp.), s. 4]. Canadian Charter of Rights and Freedoms, ss. 7, 11(e). Controlled Drugs and Substances Act, S.C. 1996, c. 19. Criminal Code, R.S.C. 1985, c. C-46, ss. 2, “justice”, 19,

Part IV, 145(2), (3) [ad. 2018, c. 29, s. 9(7)], (4), (5) [ad. 2019, c. 25, s. 47(1)],(5.1), 161(1) to (4), 215 to 217.1, 469, 493, “judge”, 493.1, 493.2, 515, 518(1)(c)(iii), 520, 521, 522(4), 523(2), 523.1, 524, 680, 686(1)(b)(iii), 733.1,

Part XXV, 811(a), (b). Authors Cited

Ashworth, Andrew, and Lucia Zedner. Preventive Justice . Oxford: Oxford University Press, 2014. Beattie, Karen, André Solecki and Kelly E. Morton Bourgon. Police and Judicial Detention and Release Characteristics: Data from the Justice Effectiveness Study . Ottawa: Government of Canada, 2013. Berger, Benjamin L., and James Stribopoulos. “Risk and the Role of the Judge: Lessons from Bail”, in Benjamin L. Berger, Emma Cunliffe and James Stribopolous, eds., To Ensure that Justice is Done: Essays in Memory of Marc Rosenberg . Toronto: Thomson Reuters, 2017. British Columbia. Prosecution Service.

Crown Counsel Policy Manual , “Bail — Adult”, April 2019 (online: https://www2.gov.bc.ca/assets/gov/law-crime-and-justice/criminal-justice/prosecution-service/crown-counsel-policy-manual/bai-1.pdf; archived version: https://www.scc-csc.ca/cso-dce/2020SCC-CSC14_1_eng.pdf ). Canada. Canadian Committee on Corrections. Report of the Canadian Committee on Corrections — Toward Unity: Criminal Justice and Corrections . Ottawa: Queen’s Printer, 1969. Canada. Department of Justice. Research and Statistics Division. Research in Brief: Assessments and Analyses of Canada’s Bail System , by Kyle Coady.

Government of Canada, 2018. Canada. House of Commons. House of Commons Debates , vol. 3, 3rd Sess., 28th Parl., February 5, 1971, p. 3117. Canada. House of Commons. House of Commons Debates , vol. 148, No. 300, 1st Sess., 42nd Parl., May 24, 2018, pp. 19603 and 19606. Canada. House of Commons. Minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs , vol. 1, No. 8, 3rd Sess., 28th Parl., February 23, 1971, pp. 12 and 29. Canada. Public Prosecution Service. Public Prosecution Service of Canada Deskbook ,

Part III, c. 19, “Bail Conditions to Address Opioid Overdoses”, updated April 1, 2019 (online: https://www.ppsc-sppc.gc.ca/eng/pub/fpsd-sfpg/fps-sfp/tpd/d-g-eng.pdf; archived version: https://www.scc-csc.ca/cso-dce/2020SCC-CSC14_2_eng.pdf ). Canada. Standing Senate Committee on Legal and Constitutional Affairs. Delaying Justice is Denying Justice: An Urgent Need to Address Lengthy Court Delays in Canada . Ottawa, June 2017 (online: https://sencanada.ca/content/sen/committee/421/LCJC/reports/Court_Delays_Final_Report_e.pdf ; archived version: https://www.scc- csc.ca/cso-dce/2020SCC-CSC14_3_eng.pdf ). Canada.

Statistics Canada. Canadian Centre for Justice Statistics. Adult criminal and youth court statistics in Canada, 2016/2017 , by Zoran Miladinovic. Ottawa: Statistics Canada, January 2019. Canada. Statistics Canada. Canadian Centre for Justice Statistics. Trends in offences against administration of justice , by Maria Burczycka and Christopher Munch. Ottawa: Statistics Canada, October 2015. Canada. Statistics Canada. Canadian Centre for Justice Statistics. Trends in the Use of Remand in Canada , by Lindsay Porter and Donna Calverly. Ottawa: Statistics Canada, May 2011. Canada. Statistics Canada.

Table 35-10-0177-01 — Incident-based crime statistics, by detailed violations, Canada, provinces, territories and Census Metropolitan Areas (online: https://www150.statcan.gc.ca/t1/tbl1/en/tv.action?pid=3510017701; archived version: https://www.scc-csc.ca/cso-dce/2020SCC-CSC14_4_eng.pdf ). Canadian Civil Liberties Association and Education Trust.

Set Up to Fail: Bail and the Revolving Door of Pre-trial Detention , by Abby Deshman and Nicole Myers, 2014 (online: https://ccla.org/cclanewsite/wp-content/uploads/2015/02/Set-up-to-fail-FINAL.pdf; archived version: https://www.scc-csc.ca/cso-dce/2020SCC-CSC14_5_eng.pdf ). Friedland, Martin L. Detention before Trial: A Study of Criminal Cases Tried in the Toronto Magistrates’ Courts . Toronto: University of Toronto Press, 1965. Friedland, Martin L. “Reflections on Criminal Justice Reform in Canada” (2017), 64 Crim. L.Q. 274. Friedland, Martin L. “The Bail Reform Act Revisited” (2012), 16 Can. Crim. L.R. 315.

John Howard Society of Ontario. Reasonable Bail? September 2013 (online: https://johnhoward.on.ca/wp- content/uploads/2014/07/JHSO-Reasonable-Bail-report-final.pdf; archived version: https://www.scc-csc.ca/cso-dce/2020SCC- CSC14_6_eng.pdf ). Manikis, Marie, and Jess De Santi. “Punishing while Presuming Innocence: A Study on Bail Conditions and Administration of Justice Offences” (2019), 60 C. de D. 873. Manning, Morris, and Peter Sankoff, Manning, Mewett & Sankoff: Criminal Law , 5th ed., Markham, Ont.: LexisNexis, 2015.

Myers, Nicole Marie. “Eroding the Presumption of Innocence: Pre-Trial Detention and the Use of Conditional Release on Bail” (2017), 57 Brit. J. Criminol. 664. Ontario. Ministry of the Attorney General. Ontario Prosecution Directive , “Judicial Interim Release (Bail)”, November 2017 (online: https://files.ontario.ca/books/crown_prosecution_manual_english_1.pdf; archived version: https://www.scc-csc.ca/cso-dce/2020SCC- CSC14_7_eng.pdf ).

Pivot Legal Society. Project Inclusion: Confronting Anti-Homelessness & Anti-Substance User Stigma in British Columbia , by Darcie Bennett and D.J. Larkin, 2019 (online: https://d3n8a8pro7vhmx.cloudfront.net/pivotlegal/pages/3297/attachments/original/1543970419/project-inclusion-digital.pdf? 1543970419; archived version: https://www.scc-csc.ca/cso-dce/2020SCC-CSC14_8_eng.pdf ). Rankin, Micah B. “Using Court Orders to Manage, Supervise and Control Mentally Disordered Offenders: A Rights-Based Approach” (2018), 65 C.L.Q. 280. Reid, Hubert, avec la collaboration de Simon Reid.

Dictionnaire de droit québécois et canadien , 5 e éd. Montréal: Wilson & Lafleur, 2015, “ omission ”. Rogin, Jillian. “Gladue and Bail: The Pre-Trial Sentencing of Aboriginal People in Canada” (2017), 95 Can. Bar Rev. 325. Scollin, John A. The Bail Reform Act: An Analysis of Amendments to the Criminal Code Related to Bail and Arrest . Toronto: Carswell, 1972. Stuart, Don. Canadian Criminal Law: A Treatise , 6th ed. Scarborough, Ont.: Thomson/Carswell, 2011. Sullivan, Ruth. Sullivan on the Construction of Statutes , 6th ed. Markham, Ont.: LexisNexis, 2014. Sylvestre, Marie-Eve, Nicholas K.

Blomley and Céline Bellot. Red Zones: Criminal Law and the Territorial Governance of Marginalized People . Cambridge: Cambridge University Press, 2019. Trotter, Gary T. The Law of Bail in Canada , 3rd ed. Toronto: Carswell, 2010 (loose-leaf updated 2019, release 1). Webster, Cheryl Marie. “Broken Bail” in Canada: How We Might Go About Fixing It . Ottawa: Government of Canada, June 2015. Yule, Carolyn, and Rachel Schumann. “Negotiating Release? Analysing Decision Making in Bail Court” (2019), 61 Can. J. Crimin. & Crim. Just. 45.

APPEAL from a judgment of the British Columbia Court of Appeal (Stromberg-Stein, Willcock, Savage, Fenlon and Fisher JJ.A.), 2019 BCCA 9 , 370 C.C.C. (3d) 111, 53 C.R. (7th) 373, [2019] B.C.J. No. 18 (QL), 2019 CarswellBC 19 (WL Can.), affirming a decision of Thompson J., 2017 BSCS 2070, [2017] B.C.J No. 2298 (QL), 2017 CarswellBC 3175 (WL Can.) , affirming the convictions of the accused for failure to comply with a condition of a recognizance. Appeal allowed. Sarah Runyon , Garth Barriere and Michael Sobkin , for the appellant. Éric Marcoux and Ryan Carrier , for the respondent.

Susan Reid , for the intervener the Attorney General of Ontario. Susanne Elliott , for the intervener the Attorney General of British Columbia. Christine Mainville , for the intervener the Criminal Lawyers’ Association of Ontario. Jason B. Gratl and Toby Rauch-Davis , for the intervener the Vancouver Area Network of Drug Users. Alexandra Luchenko , Roy W. Millen and Danny Urquhart , for the intervener the British Columbia Civil Liberties Association. Danielle Glatt , for the intervener the Canadian Civil Liberties Association.

Matthew Nathanson and Chantelle van Wiltenburg , for the intervener the Independent Criminal Defence Advocacy Society. David N. Fai and Caitlin Shane , for the intervener the Pivot Legal Society. Nicholas St-Jacques and Pauline Lachance , for the intervener Association québécoise des avocats et avocates de la défense. The judgment of the Court was delivered by Martin J. — I. Introduction [ 1 ] When individuals are charged with a crime, they are presumed innocent and have the right not to be denied reasonable bail without just cause.

Most accused are not held in custody between the date of the charge and the time of trial because the Criminal Code , R.S.C. 1985, c. C-46 (“ Code ”) and the Canadian Charter of Rights and Freedoms (“ Charter ”) typically require that accused be released on what is known as “bail”. [1] Accused who are not released from custody by the police will be brought before a justice of the peace or a judge (“judicial official”) [2] for a bail hearing.

For most crimes, the default form of bail is to release accused persons based on an undertaking to attend trial, without any conditions restricting their activities or actions ( s. 515(1) of the Code ). However, conditions of release 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 protection or safety of the public, or maintain confidence in the administration of justice (s.

515(10); R. v. Antic , 2017 SCC 27 , [2017] 1 S.C.R. 509, at paras. 21 , 34 and 67(j)). [ 2 ] Parliament made it a separate criminal offence to breach bail conditions under s. 145(3) of the Code . [3] This is a crime against the administration of justice and carries a maximum penalty of two years’ imprisonment. Accused persons may therefore be subject to imprisonment under s. 145(3) if they breach a condition of their bail, even if they are never ultimately convicted of any of the crimes for which they were initially charged.

In many cases, an accused person faces criminal sanctions for conduct which, but for the stipulated bail condition, would be a lawful exercise of personal freedom. As the gravamen of the offence is a failure to comply with a court order, there is often no victim, no violence, or no direct harm to the public or property. [ 3 ] The appellant, Mr. Zora, appeals his convictions under s. 145(3) for twice failing to comply with his bail condition to answer the door when police went to his residence to check that he was complying with his bail conditions.

He committed the guilty act, or the actus reus , by failing to answer the door when police attended. We are asked to determine what fault or mental element the Crown must prove to secure a conviction under s. 145(3) : is the mens rea for this offence to be assessed on a subjective or objective standard? [ 4 ] I conclude that the Crown is required to prove subjective mens rea and no lesser form of fault will suffice. Under s. 145(3), the Crown must establish that the accused committed the breach knowingly or recklessly.

Nothing in the text or context of s. 145(3) displaces the presumption that Parliament intended to require a subjective mens rea . Further, this intention is supported by this Court’s jurisprudence on the

interpretation of the breach of probation offence, the consequences of charges and convictions under s. 145(3), the role of s. 145(3) within the constitutional and legislative scheme of bail, and the practical operation of the bail system. A subjective mens rea standard for breach under s. 145(3), like Parliament’s recent amendments to the bail scheme, keeps the focus on the individual accused, where it belongs. [ 5 ] The parties and interveners recognize that the question of the mens rea requirement for s. 145(3) raises broader considerations about the functioning of our complex bail system.

The breach of a bail condition reaches back to, and is based upon, the conditions imposed at the beginning of the bail process. In Antic , this Court endorsed principles for reasonable bail based on documented concerns over how the bail system operates across Canada. Three years after Antic , and with the same goal of providing guidance, I address the imposition of non-monetary bail conditions and the criminal offences that result from their breach. A similarly wide-angle lens is required.

Offences under s. 145(3) are very common, on the rise, and often involve questionable conditions imposed upon vulnerable and marginalized persons. Parliament has recently acted to address how numerous and onerous bail conditions interact with s. 145(3) to create a cycle of incarceration, especially among the most vulnerable in our population. This Court cannot ignore the current context in which the bail system operates, and in response provides guidance on both the

interpretation of s. 145(3) and the imposition of the bail conditions that lead to these charges. [ 6 ] All those involved in the bail system are to be guided by the principles of restraint and review when imposing or enforcing bail conditions. The principle of restraint requires any conditions of bail to be clearly articulated, minimal in number, necessary, reasonable, least onerous in the circumstances, and sufficiently linked to the accused’s risks regarding the statutory grounds for detention in s. 515(10).

The principle of review requires everyone, and especially judicial officials, to carefully scrutinize bail conditions at the release stage whether the bail is contested or is on consent. Most bail conditions restrict the liberty of a person who is presumed innocent. Breach can lead to serious legal consequences for the accused and the large number of breach charges has important implications for the already over-burdened justice system. Before transforming bail conditions into personal sources of potential criminal liability, judicial officials should be alive to possible problems with the conditions.

Requiring subjective mens rea to affix criminal liability under s. 145(3) reflects the principles of restraint and review and mirrors the individualized approach mandated for the imposition of bail conditions. [ 7 ] I approach these reasons as follows. First, I outline the factual background and judicial history of this appeal. Second, I review the legislative and constitutional framework of bail, which provides necessary background for interpreting the failure to comply offence in s. 145(3). Third, I set out why my

interpretation of s. 145(3) leads me to conclude that the offence requires subjective mens rea . Fourth, I provide broader guidance on what is required for a bail condition to be necessary, reasonable, least onerous, and sufficiently linked to the risks listed in s. 515(10). Fifth, I explain what will be required to prove subjective mens rea for the failure to comply offence. Lastly, I describe why I would order a new trial in this case. II. Factual Background and Judicial History [ 8 ] Mr.

Zora was charged with three counts of possession for the purpose of trafficking contrary to the Controlled Drugs and Substances Act , S.C. 1996, c. 19 , and was granted bail on his own recognizance [4] with conditions and with his mother as surety. [5] His twelve bail conditions required that he “keep the peace and be of good behaviour”, report to his bail supervisor as directed, remain in the province of British Columbia unless consent was granted by his bail supervisor, obey all rules and regulations of his residence, remain in his residence except during the day in the company of his mother or father or a person approved by his bail supervisor and with the consent of his bail supervisor (referred to as the curfew or house arrest condition), present himself at the door of his residence within five minutes of a peace officer or bail supervisor attending to confirm his compliance with his house arrest condition, not possess any non-prescribed controlled substances, not possess drug paraphernalia, not possess or have a cell phone, attend a residential treatment facility if he consented, and not possess any weapon (A.R., at p. 137). [ 9 ] The police came almost every day, at different times in the evening, to check his compliance with the curfew in the approximately one month between his release from custody on September 17, 2015, and his alleged breaches in October 2015.

The trial judge found that due to the nature of the charges, the RCMP “were quite diligent in investigating any possible violation” of Mr. Zora’s bail conditions (B.C. Prov. Ct., Nos. 38980-6-CAC, 38980-7-CAC, March 29, 2017, at para. 2 (“Trial Judge reasons”), reproduced in A.R., at p. 2). [ 10 ] On two evenings on Thanksgiving weekend, October 9 and 11, 2015, Mr. Zora failed to present himself at his door when police attended his residence around 10:30 p.m. Mr. Zora did not know that he had missed the police at his door until two weeks

later when informed that he was being charged with two counts of breaching his curfew condition and two counts of breaching hiscondition to answer the door. Following his breach charges, Mr. Zora was released on bail on a similar recognizance, but with the addedcondition that he personally and immediately answer the phone at his residence when any peace officer or bail supervisor called theresidence. Mr. Zora testified that he subsequently set up an audio-visual system at his front door and moved his bedroom so that hewould not miss future police checks. [11] Mr.

Zora, his mother, and his girlfriend testified that they were all at home during the Thanksgiving weekend.Mr. Zora said it would have been difficult, if not impossible, to hear the doorbell or someone knocking on the front door from hisbedroom. His bedroom was downstairs on the far side of the residence, and he was tired and retiring early because he was withdrawingfrom heroin and in a methadone treatment program. The trial judge raised concerns with the credibility and reliability of the defencewitnesses, but did not make clear findings of fact, however, on whether Mr.

Zora knew that he was unable to hear his doorbell from hisroom when police attended his door that weekend (Trial Judge reasons, at paras. 11-14). [12] The trial judge acquitted Mr. Zora on the alleged curfew violations as he was not satisfied beyond a reasonable doubtthat Mr. Zora had been outside of his house at the time. He convicted Mr. Zora on the two counts of failing to appear at the door forcurfew compliance checks. The trial judge analogized s. 145(3) offences to strict liability offences and therefore found that Mr.

Zora wasguilty of breach of his conditions as he had not “arrange[d his] life to comply with the terms of bail” (Trial Judge reasons, at para. 16).Mr. Zora was fined a total of $920. [13] The

summary conviction appeal judge dismissed the appeal and concluded that objective mens rea was sufficient fora conviction under s. 145(3) because the British Columbia Court of Appeal decision in R. v. Ludlow, 1999 BCCA 365, 125 B.C.A.C.194, adopted an objective fault standard for these types of offences (2017 BCSC 2070, at para. 7 ). This meant that Mr.

Zora’sconvictions were upheld because his behaviour was a marked departure from what a reasonable person would do to ensure theycomplied with their conditions. [14] A five-judge panel of the British Columbia Court of Appeal dismissed the appeal (2019 BCCA 9, 53 C.R. (7th)373). Stromberg-Stein J.A., writing for the majority of four, concluded that s. 145(3) only requires an objective mens rea.

The majorityfound that the text, context, and purpose of s. 145(3) created a duty-based offence grounded in the specific legal duty to comply with bailconditions, which demonstrated Parliament’s intention to create an offence with an objective mens rea (paras. 53-58). [15] Fenlon J.A., concurring in the result, found that s. 145(3) required subjective fault. In her view, this was not a duty-based offence and neither the words nor the scheme nor purpose of the offence supported a clear legislative intent to displace thepresumptive subjective fault element.

Fenlon J.A. nevertheless dismissed the appeal as she concluded that the Crown had establishedsubjective fault by showing that Mr. Zora was reckless since he knew that there were parts of his house where he would not hear thedoorbell and yet he made no effort to address the situation (paras. 95-96). III. Legislative Background and the Context of Section 145(3) [16] Section 145(3) is a hybrid offence that applies to breaches of conditions imposed on an accused by a court order priorto trial, while awaiting sentencing, or during an appeal. The offence falls under

Part IV of the Code, which deals with offences againstthe administration of law and justice. There are similarly worded offences for accused persons who fail to attend court when required(s. 145(2), (4), and (5)) or fail to comply with conditions of undertakings issued by peace officers (s. 145(5.1)).

Given these offences aresubstantively similar in text and context, I see no reason why these offences should carry a different fault standard from s. 145(3). [17] The predecessor to s. 145(3), s. 133(3), was introduced in 1972 through the Bail Reform Act, S.C. 1970-71-72, c. 37.It created an offence where a person bound by conditions of an undertaking or recognizance on bail “fails, without lawful excuse, theproof of which lies upon him, to comply with that condition” (R.S.C. 1970, c. 2 (2nd Supp.), s. 4).

Prior to this, there was no offence forfailure to comply with bail conditions and the Code provided no guidance for imposing bail conditions (Antic, at para. 23). [18] Section 145(3) was amended in 2018 to remove the reverse onus on the accused to prove lawful excuse (S.C. 2018,c. 29, s. 9(7)). On December 18, 2019, as part of larger amendments to the bail scheme, the offence under s. 145(3) was split into twosubsections to separately address the failure to comply with an undertaking under s. 145(4) and a release order or a no-communicationorder under s. 145(5) (S.C. 2019, c. 25, s. 47(1)).

While these changes do not really alter the failure to comply offence, Parliament alsomade significant changes to address mounting concerns about the imposition of excessive and unfair bail terms and the overuse ofcriminal sanctions for the failure to comply with conditions of bail (see House of Commons Debates, vol. 148, No. 300, 1st Sess., 42ndParl., May 24, 2018, at pp. 19603 and 19606, Hon.

Jody Wilson-Raybould, Minister of Justice and Attorney General). [19] The parties and interveners recognize that the particular question before the Court needs to be situated within thecomplex legal and factual context in which bail operates in Canada. Not only does the fault element under s. 145(3) have far-reachingimplications for civil liberties and the fair and efficient functioning of bail in this country, there is a direct link between what conditionsmay be imposed in a bail order and Parliament’s intent in criminalizing their breach under s. 145(3).

Before looking to how s. 145(3)should be interpreted, it is necessary to provide a brief overview of the factors and framework which structure how bail conditions areestablished. The release conditions to which s. 145(3) applies are imposed in a bail system bounded by the Charter, governed by theCode, and informed by the jurisprudence. [20] From a constitutional perspective, most bail conditions restrict the liberty of persons who are presumed innocent andimpose a risk of further criminal liability on those persons because of the failure to comply offence under s. 145(3).

Therefore, thesetting of bail conditions must be consistent with the presumption of innocence and the right not to be denied reasonable bail without justcause under s. 11(

e) of the Charter (see Antic, at para. 67; R. v. Tunney, 2018 ONSC 961, 44 C.R. (7th) 221, at para. 36).

Section 11(e)protects both the right not to be denied bail without “just cause” and the right to bail on reasonable terms and conditions (R. v. Pearson, (SCC), [1992] 3 S.C.R. 665, at p. 689; R. v. Morales, (SCC), [1992] 3 S.C.R. 711, at p. 735; Antic, atparas. 36-41). The s. 11(

e) right is “an essential element of an enlightened criminal justice system” that “entrenches the effect of thepresumption of innocence at the pre-trial stage of the criminal trial process and safeguards the liberty of accused persons” (Antic, at para.

1).[6] The presumption of innocence is “a hallowed principle lying at the very heart of criminal law [that] confirms our faith inhumankind” (Antic, at paras. 66-67(a), quoting R. v. Oakes, (SCC), [1986] 1 S.C.R. 103, at pp. 119-20; see also R. v.Myers, 2019 SCC 18, [2019] 2 S.C.R. 105, at para. 1). The presumption of innocence is only satisfied in the bail process when therequirements of s. 11(

e) are met (Pearson, at pp. 688-89; Morales, at p. 748). As described by Andrew Ashworth and Lucia Zedner, thepresumption of innocence and the protection of liberty rights mean that “the state should presume each person to be harmless . . .therefore it is in principle wrong to take coercive measures against people for preventive reasons unless there are very strongjustifications for doing so” (Preventive Justice (2014), at p. 53). The Charter therefore protects accused persons from unreasonable termsand conditions of bail. [21]

Section 515 of the Code governs how judicial officials are to exercise their discretion to grant bail, establishes thelegal forms of bail, and requires that the conditions of bail are only as onerous as necessary to address the risks listed in s. 515(10):being, the risk of the accused not attending court, harm to public protection and safety, and loss of confidence in the administration ofjustice. Subsections 515(1) to (3) codify the “ladder principle”, a principle premised on restraint, which “requires that the form of releaseimposed on an accused be no more onerous than necessary” (Antic, at para. 44).

A judicial official is only permitted to impose a moreonerous form of release “if the Crown shows why a less onerous form of release is inappropriate” (Antic, at para. 47). Therefore, thedefault form of release for an accused charged with an offence, other than the very serious offences listed in s. 469, is release on anundertaking without conditions (s. 515(1)).

Under s. 515(2)(a), if the Crown shows that an accused should not be released on anundertaking without conditions, the judicial official should consider releasing the accused on an undertaking with conditions. [22] The Code provides for enumerated and non-enumerated conditions of bail. The enumerated conditions in s. 515(4) to(4.2) provide guidance regarding the individualized nature of conditions and the expected degree of connection between the conditionand the risks listed in s. 515(10).

Most discretionary conditions enumerated in s. 515(4) address an individual accused’s flight risk or riskof not attending their court date: reporting to a peace officer (s. 515(4)(a)), remaining within a territorial jurisdiction (s. 515(4)(b)),notifying a peace officer of a change in address and employment (s. 515(4)(c)), and depositing a passport (s. 515(4)(e)) (see G. T.Trotter, The Law of Bail in Canada (3rd ed. (loose-leaf)), at pp. 6-27 to 6-32). Enumerated conditions related to no-communicationorders (ss. 515(4)(

d) and 515(4.2)), geographical restrictions (s. 515(4)(d)), and mandatory weapons prohibitions for specific offences(s. 515(4.1)) are directly linked to the second ground of detention: public safety and security.

In fact, even mandatory weaponsprohibitions give the judicial official some leeway to not impose the weapons prohibition if they consider that the condition is notnecessary to protect the safety of the accused, or the safety and security of a victim or any other person (s. 515(4.1)). [23] Under s. 515(4)(f),[7] judicial officials are also given flexibility to impose non-enumerated conditions, defined as:“such other reasonable conditions . . . as the justice considers desirable”. As shown by Mr.

Zora’s twelve, and then thirteen, releaseconditions, non-enumerated bail conditions often cover a broad range of activities.

It is common for conditions to range from requiringan accused to keep the peace and be of good behaviour, prohibiting cellphone use and internet access, controlling alcohol and drugconsumption, imposing a curfew, limiting where an accused can go over large areas of a city, requiring compliance with randomsearches, and even restricting the accused’s ability to exercise their rights to freedom of expression and peaceful assembly (see, e.g.,Trotter, at p. 6-44.1). [24] The jurisprudence mandates that judicial officials respect the ladder principle, meaning that they must considerrelease with fewer and less onerous conditions before release on more onerous ones (see R. v.

Schab, 2016 YKTC 69, 35 C.R. (7th) 48,at para. 29; R. v. Prychitko, 2010 ABQB 563, 618 A.R. 146, at para. 14). The case law is clear that non-enumerated conditions imposedunder s. 515(4)(f), like enumerated conditions, must be minimal, necessary, reasonable, the least onerous in the circumstances, andsufficiently connected to a risk listed in s. 515(10) (Antic, at para. 67(j); see also R. v. Penunsi, 2019 SCC 39, [2019] 3 S.C.R. 91, atparas. 78-80). The ladder principle applies to conditions of release just as it applies to forms of release.

There is a link between the ladderprinciple and the number and content of bail conditions. Without a restrained approach to bail conditions, a less onerous form of bail,such as an undertaking with conditions, can become just as or more onerous than other steps up the bail ladder or, in some cases, evenmore restrictive than conditional sentence and probation orders issued after conviction (R. v. McCormack, 2014 ONSC 7123, at para. 23; R. v.

Burdon, 2010 ABCA 171, 487 A.R. 220, at para. 8). [25] Only conditions that are specifically tailored to the individual circumstances of the accused can meet these criteria.Bail conditions are thus intended to be particularized standards of behavior designed to curtail statutorily identified risks posed by aparticular person. They are to be imposed with restraint not only because they limit the liberty of someone who is presumed innocent ofthe underlying offence, but because the effect of s. 145(3) is often to criminalize behaviour that would otherwise be lawful.

In effect,each imposed bail condition creates a new source of potential criminal liability personal to that individual accused. [26] Many interveners drew attention to the widespread problems which continue to exist, even after this Court’s decisionin Antic, with the ongoing imposition of bail conditions which are unnecessary, unreasonable, unduly restrictive, too numerous, or whicheffectively set the accused up to fail. Any such practice offends the principle of restraint which has always been at the core of the lawgoverning the setting of bail conditions.

Restraint has a constitutional dimension, a legislative footing, and is not only recognized in caselaw, but was also recently expressly reinforced by the amendments that came into force on December 18,

Section 493.1 nowexplicitly sets out a “principle of restraint” for any interim release decisions, requiring a peace officer or judicial official to “give primaryconsideration” to imposing release on the “least onerous conditions that are appropriate in the circumstances, including conditions thatare reasonably practicable for the accused to comply with”.

Section 493.2 requires judicial officials making bail decisions to giveparticular attention to the circumstances of accused persons who are Indigenous or who belong to a vulnerable population that isoverrepresented in the criminal justice system and disadvantaged in obtaining release. [27] Parliament also acted to address concerns regarding the over-criminalization of bail breaches, which is in partexplained by the initial imposition of numerous and onerous bail conditions.

Besides changes to bail revocation under s. 524, Parliamenthas enacted a new procedure for managing failure to comply charges under s. 145(3), called a “judicial referral hearing” (s. 523.1). If anaccused has failed to comply with their conditions of release, and has not caused harm to a victim, property damage, or economic loss,the Crown can opt to direct the accused to a judicial referral hearing. If satisfied that the accused failed to comply with their court orderor failed to attend court, a judicial official must review the accused’s conditions of bail while taking special note of the accused’s

particular circumstances. The judicial official can then decide to take no action, release the accused on new conditions, or detain theaccused. If the accused was charged with a failure to comply offence, the judicial official must dismiss the charge after making theirdecision (s. 523.1; R. v. Rowan, 2018 ABPC 208, at paras. 39-40 ). [28] Although these amendments occurred after Mr. Zora was charged, I note that my

interpretation of the mens rea in s.145(3), based on the relevant statutory context of the bail scheme, is consistent with the concerns acknowledged and addressed inParliament’s recent amendments. IV.

Interpretation of the Mens Rea of Section 145(3) A. Subjective and Objective Mens Rea [29] The main issue in this appeal is whether the mens rea for s. 145(3) is subjective or objective. A subjective faultstandard would focus on what was in the accused’s mind at the time they breached their bail condition. It directs a court to considerwhether the accused “actually intended, knew or foresaw the consequence and/or circumstance 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”(R. v.

Hundal, (SCC), [1993] 1 S.C.R. 867, at pp. 882-83, quoting D. Stuart, Canadian Criminal Law (2nd ed. 1987), atpp. 123-24). In applying a subjective mens rea, courts can consider personal circumstances and challenges of the accused in a mannerwhich mirrors the individualized manner in which bail conditions are to be imposed. [30] Under objective mens rea, the question would be whether the accused’s behaviour was a marked departure from thebehaviour of a reasonable person subject to the accused’s bail conditions (C.A. reasons, at para. 68).

The standard is based on what thereasonable person would know or do or have foreseen in the circumstances and it does not matter if the accused does not know they werebreaching their condition. Objective fault is premised on uniform societal standards of behavior and therefore does not permitconsideration of the inexperience, lack of education, youth, cultural experience, or any other circumstance of the accused, short of anincapacity or virtual inability to comply (C.A. reasons, at para. 87 (Fenlon J.A. concurring), citing R. v.

Creighton, (SCC), [1993] 3 S.C.R. 3, at pp. 58-74 (per McLachlin J.) and pp. 38-39 (per La Forest J.); R. v. Naglik, (SCC), [1993] 3S.C.R. 122, at p. 148 (per McLachlin J.) and p. 149 (per L’Heureux-Dubé J.)). [31] This is the first time this Court has been asked to consider the mens rea for this offence. Courts across the countryhave divided on whether the mental element for the crime of breaching a bail condition, or similar offences under s. 145(2), (4), (5) and(5.1), are to be assessed subjectively or objectively.

Courts in Manitoba, Ontario, Quebec, Saskatchewan, New Brunswick, and theterritories usually require subjective mens rea for these offences (see, e.g., R. v. Custance, 2005 MBCA 23, 194 C.C.C. (3d) 225; R. v.Legere (1995), (ON CA), 22 O.R. (3d) 89 (C.A.); R. v. Lemay, 2018 QCCS 1956; R. v. J.A.D., 1999 SKQB 262, 187Sask. R. 95; R. v. Howe, 2014 NBQB 259, 430 N.B.R. (2d) 202; R. v. Mullin, 2003 YKTC 26, 13 C.R. (6th) 54; R. v. Selamio, 2002NWTSC 15; R. v. Josephie, 2010 NUCJ 7). In contrast, as shown by this case, British Columbia appellate courts have adopted anobjective mens rea (see also Ludlow).

Courts in Alberta, Nova Scotia, and Newfoundland and Labrador have adopted varying andmodified approaches to the mens rea for these offences (subjective: e.g., R. v. Ritter, 2007 ABCA 395, 422 A.R. 1; R. v. Loutitt, 2011ABQB 545, 527 A.R. 212; R. v. Lofstrom, 2016 ABPC 197, 39 Alta. L.R. (6th) 367; R. v. Al Khatib, 2014 NSPC 62, 350 N.S.R. (2d)133; R. v. A.M.Y., 2017 NSSC 99; R. v. L.T.W., (N.L. Prov. Ct.); R. v. Companion, (N.L. Prov.Ct.); objective: e.g., R. v. Hammoud, 2012 ABQB 110, 534 A.R. 80; R. v. Qadir, 2016 ABPC 27; R. v. Osmond, 2006 NSPC 52, 248N.S.R. (2d) 221; R. v.

Brown, 2012 NSPC 64, 319 N.S.R. (2d) 128; R. v. Foote, (N.L. Prov. Ct.)). B. Statutory

Interpretation and the Presumption of Subjective Fault [32] Determining the mens rea of s. 145(3) involves an exercise in statutory

interpretation to discern the fault standardintended by Parliament. A key part of the context in interpreting s. 145(3) is the long-standing presumption that Parliament intendscrimes to have a subjective fault element (R. v. A.D.H., 2013 SCC 28, [2013] 2 S.C.R. 269, at para. 23, citing R. v. Sault Ste. Marie, (SCC), [1978] 2 S.C.R. 1299, at pp. 1303 and 1309-10, per Dickson J.). [33] As described by this Court in A.D.H., this presumption of subjective fault reflects the underlying value in criminal lawthat the “morally innocent should not be punished” (A.D.H., at para. 27).

This starting point is not an absolute rule, but rather captureswhat was assumed to be present in the mind of Parliament when enacting the provision (para. 26). The presumption of subjective faultwill only be overridden by “clear expressions of a different legislative intent” (paras. 27-29).

Courts must read the words of the statute intheir entire context, in their grammatical and ordinary sense harmoniously with the scheme and objects of the statute to discern whetherthere is a clear legislative intention to overturn the presumption of subjective fault (at paras. 19-21, citing Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27, at p. 41 (quoting E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87)).

If acriminal offence in the Code is ambiguous as to the mens rea, then the presumption of subjective fault has not been displaced. [34] Subsection 145(3) is a criminal offence, as indicated by its enactment in the Code, its purposes of deterrence andpunishment (as is further described below), and the serious criminal consequences that flow from conviction, including up to two years’imprisonment (see D. Stuart, Canadian Criminal Law: A Treatise (6th ed. 2011), at p. 202; Hammoud, at paras. 11-15). Accordingly, thepresumption is that s. 145(3) requires subjective fault.

The question then becomes whether the text, context, scheme and purpose ofs. 145(3) evince a clear intention of Parliament to enact an objective mens rea standard. [35] In my view, they do not. Not only is there no reason in the text or context of the offence to suggest that Parliamentintended to depart from requiring subjective fault, I conclude that Parliament intended for subjective fault to apply to s. 145(3). Thewording in s. 145(3) is neutral and does not create a duty-based offence with objective mens rea as defined in A.D.H. All the otherrelevant factors support a subjective fault element.

This Court has previously decided that subjective intent is required for the similaroffence of breach of probation. Further, the legislative history, context, and purpose of s. 145(3) within the larger legislative scheme, aswell as the significant consequences associated with a charge or conviction under s. 145(3), call for a subjective mens rea element. Therealities of the bail system further support Parliament’s intention to require subjective fault to ensure that the individual characteristics ofthe accused are considered throughout the bail process.

Considering this social and practical context affirms that the consequences that

would flow from requiring only an objective mens rea for the failure to comply offence would not uphold the intention of Parliament (R.Sullivan, Sullivan on the Construction of Statutes (6th ed. 2014), at pp. 643 and 648). C. The Text of Section 145(3) Is Neutral and Does Not Create a Duty-Based Offence [36] The text of s. 145(3) is neutral insofar as it does not show a clear intention on the part of Parliament with regard toeither subjective or objective mens rea. When Mr. Zora was charged in 2015, the failure to comply offence read: [145]

(3) Every person who is at large on an undertaking or recognizance given to or entered into before a justice or judge and is boundto comply with a condition of that undertaking or recognizance, and every person who is bound to comply with a direction undersubsection 515(12) or 522(2.1) or an order under subsection 516(2), and who fails, without lawful excuse, the proof of which lies onthem, to comply with the condition, direction or order is guilty of (

a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or (

b) an offence punishable on

summary conviction. [37] I start by noting that the inclusion of the statutory defence of a “lawful excuse” in s. 145(3) plays no role in theinterpretation of the mens rea of the offence. Lawful excuse provides an additional defence that would not otherwise be available to theaccused (see R. v. Holmes, (SCC), [1988] 1 S.C.R. 914, at pp. 948-49, see also

interpretations of “reasonable excuse” inR. v. Moser (1992), (ON CA), 7 O.R. (3d) 737 (C.A.), at pp. 748-50, per Doherty J.A., concurring; R. v. Goleski, 2014BCCA 80, 307 C.C.C. (3d) 1, aff’d 2015 SCC 6, [2015] 1 S.C.R. 399). It should not be confused with mens rea (M. Manning and P.Sankoff, Manning, Mewett & Sankoff: Criminal Law (5th ed. 2015), at p. 805; Trotter, at p. 12-16). The availability of the defence doesnot change the burden on the Crown to prove all elements of the offence, including mens rea, beyond a reasonable doubt (Legere, at pp.99-100, citing R. v.

Santeramo (1976), (ON CA), 32 C.C.C. (2d) 35 (Ont. C.A.), at p. 44; Custance, at para. 24;Josephie, at para. 28 ). Therefore, it is not material to the issue of whether the mens rea element of the offence is subjective orobjective. [38] In evaluating whether there is an expression of legislative intent that displaces the presumption of subjective fault,courts look both to the words included in the provision as well as the words that were not (A.D.H., at para. 42). It is true that s. 145(3)does not contain express words indicating a subjective intent, like “wilful” or “knowing”.

However, this absence cannot, on its own,displace the presumption.

In fact, it is precisely when the words and context are neutral that the presumption of subjective mens reaoperates with full effect. [39] The majority of the Court of Appeal emphasized that the words “undertaking”, “recognizance”, “[b]ound to comply”,and “[f]ails” indicate that the accused has a binding legal obligation to meet an objectively determined standard of conduct (para. 53).They looked to the five categories of objective mens rea offences outlined by this Court in A.D.H., at paras. 57-63: dangerous conductoffences; careless conduct offences; predicate offences; criminal negligence offences; and duty-based offences.

The majority, at para.54, found that this language meant that s. 145(3) fell within the last category, namely duty-based offences. Duty-based offences, such asfailing to provide the necessaries of life under s. 215, are offences based on a failure to perform specific “legal duties arising out ofdefined relationships” (A.D.H., at para. 67, citing Naglik, at p. 141). [40] The Crown also argues that the legislative history of s. 145(3) supports this

interpretation, since when it wasenacted, the then Minister of Justice referred to the “responsibility” or “duty” of a person on bail to attend court and comply withconditions to ensure that the bail system can rely on voluntary appearance rather than pre-trial custody (House of Commons, Minutes ofProceedings and Evidence of the Standing Committee on Justice and Legal Affairs, vol. 1, No. 8, 3rd Sess., 28th Parl., February 23,1971, at pp. 12 and 29; House of Commons Debates, vol. 3, 3rd Sess., 28th Parl., February 5, 1971, at p. 3117 (Hon.

John Turner)). [41] With respect, I disagree that either the text of s. 145(3) or the Minister’s comments establish a clear intention to createa duty-based offence which calls for the uniform normative standard associated with objective mens rea. First, the text of s. 145(3) doesnot contain any of the language typically used by Parliament when it intends to create an offence involving objective fault (see A.D.H., atpara. 73).

Unlike the duties in ss. 215, 216, 217 and 217.1 of the Code, s. 145(3) does not expressly include the word “duty”, a wordwhich may suggest objective fault (A.D.H., at para. 71; Naglik, at p. 141). I agree with Fenlon J.A. that “the omission is a significantone” (C.A. reasons, at para. 80) when we are looking for a clear intention of Parliament to rebut the presumption of subjective fault.

Ialso accept that the word “fails” in this context is neutral: “Fails” can connote neglect, but as my colleague notes, also means acting contrary to the agreed legal duty or obligation and beingunable to meet set standards or expectations: The Oxford English Dictionary, 11th ed, sub verbo “fail”. That definition is equallycompatible with intentional conduct or inadvertence. (C.A. reasons, at para. 78) Similarly, the word “omet” in the French version of s. 145(3) can refer to neglecting, but also refraining, from acting in accordance with aduty (H. Reid, with S.

Reid, Dictionnaire de droit québécois et canadien (5th ed. 2015)), at pp. 446-47, “omission”). Neither the words“fails” or “omet” demonstrate a clear intention of Parliament to establish objective fault. [42] Second, there is a danger in putting too much weight on the word choice of one minister, especially when hisstatement does not clearly evince an intention of Parliament to create an objective mens rea offence.

For example, contemporaneouscommentary described that the aim of these offences were to “ensure an accused [did] not disregard the new system with impunity”,which seems to suggest a subjective mens rea (J. Scollin, Q.C., The Bail Reform Act: An Analysis of Amendments to the Criminal CodeRelated to Bail and Arrest (1972), at p. 19). There is no clear indication from the legislative history that Parliament intended to create anobjective mens rea offence. [43] The Minister saying that a provision that establishes a criminal offence imposes a responsibility or duty in a general

sense does not make it the type of duty-based offence at issue in Naglik. The wording in s. 145(3) speaks only of being bound to complyand failing to do so. This wording does not displace the presumption of subjective intent. All criminal prohibitions impose obligations toact or not in particular ways and inflict sanctions when people fail to comply. If accepted, the Crown’s argument and the Court ofAppeal’s conclusion would make all compliance obligations into “duties” and all crimes into duty-based offences.

However, the duty-based offences discussed in A.D.H. are a far more limited category and are directed at legal duties very different from the obligation of anaccused to comply with the conditions of a judicial order. [44] Section 145(3) simply does not share the defining characteristics of those duty-based offences requiring objectivefault that were at issue in Naglik and discussed in A.D.H.

The points of distinction include the different nature of the relationships towhich these legal duties attach, the varying levels of risk to the public when duties are not met, whether the duty must be definedaccording to a uniform, societal standard of conduct, and whether applying such a uniform standard is possible and appropriate in thecircumstances. [45] Legal duties, like those in ss. 215 to 217.1, tend to impose a positive obligation to act in certain identifiablerelationships, address a duty of a more powerful party towards a weaker party, and involve a direct risk to life or health if a uniformcommunity standard of behaviour is not met (A.D.H., at para. 67).

An obligation to not breach a bail condition is not comparable to thepower imbalance and risks to public health and safety addressed by the duties imposed by ss. 215 to 217.1: providing the necessaries oflife to certain defined persons (s. 215), undertaking medical procedures that may endanger the life of another person (s. 216), orundertaking to do

an act or direct work where there is a danger to life or risk of bodily harm (ss. 217 and 217.1). [46] Further, the duty-based offence in Naglik and other types of objective mens rea offences involve legal standards thatwould be “meaningless if every individual defined its content for [themselves] according to [their] subjective beliefs and priorities” (p.141). The majority of the Court of Appeal thought that bail conditions impose just such “a minimum uniform standard of conduct havingregard to societal interests rather than personal standards of conduct” (para. 57). With respect, I disagree.

Although societal interests canbe at play when bail conditions are set, there is no uniform standard of care for abiding by bail conditions, as there is for driving a car,storing a firearm, or providing the necessaries of life to a dependant. Parliament legislated a bail system based upon an individualizedprocess, which only permits conditions which address risks specific to the accused to ensure their attendance in court, protect publicsafety, or maintain confidence in the administration of justice. The bail order is expected to list personalized and precise standards ofbehavior.

As a result, there is no need to resort to a uniform societal standard to make sense of what standard of care is expected of anaccused in fulfilling their bail conditions and no need to consider what a reasonable person would have done in the circumstances tounderstand the obligation imposed by s. 145(3). [47] In addition, the lack of a uniform standard from which to assess the breach of these conditions means that it is also notobvious what degree of breach would attract criminal liability if an objective standard applied to s. 145(3).

Only a marked departure fromthe conduct of a reasonable person would draw criminal liability under an objective standard of mens rea. However, unlike an activitylike driving where there is a spectrum of conduct ranging from prudent to careless to criminal based on the foreseeable risks of theconduct to a reasonable person, the highly individualized nature of bail conditions excludes the possibility of a uniform societal standardof conduct applicable to all potential failure to comply offences.

Bail conditions may restrict normal activities like travelling andcommunicating with other people and are specifically tailored to address the individual risks posed by each accused. Bail conditions andthe risks they address vary dramatically among individuals on release, so that it is not intelligible to refer to the concepts of a “marked”or “mere” departure from the standard of a reasonable person. In the absence of a bail condition, the regulated conduct would usually notbe a departure from any uniform societal standard of behaviour.

Without this ability to distinguish a marked departure from a meredeparture, there is a risk that the objective fault standard slips into absolute liability for s. 145(3). [48] Similarly, the offence in s. 145(3) is not comparable to other objective fault offences listed in A.D.H. Although a riskassessment is involved in the setting of bail conditions, this individualized risk will rarely be the same as the broad societal risks posedby objective fault offences like dangerous driving or careless firearms storage.

As stated by the Standing Senate Committee on Legal andConstitutional Affairs, failure to comply offences, like many offences against the administration of justice, differ from other criminaloffences because they rarely involve harm to a victim, they usually do not involve behaviour that would otherwise be considered criminalwithout a court order, and they are secondary offences that only arise after someone has been charged with an underlying offence(Delaying Justice is Denying Justice: An Urgent Need to Address Lengthy Court Delays in Canada (June 2017) (online), at p. 139(“Senate Committee Report”)).

A departure from many bail conditions would not automatically lead to a threat to public health andsafety. [49] Finally, reasonable bail is a right under s. 11(

e) of the Charter and cannot be compared to a regulated activity that isvoluntarily entered into like driving or firearm ownership where an objective fault standard for related offences is further justified(Hundal, at p. 884). An accused person who is presumed innocent has a right to regain their liberty following their arrest subject to theleast onerous measures to address their individual risk of not attending their court date, risk to public protection and safety, and risk to theadministration of justice.

The fact that accused persons consent to bail conditions in order to be released does not mean that they havechosen to enter into a regulated activity comparable to driving or owning firearms. D. Subjective Mens Rea Is Required for Breaches of Probation [50] This Court’s jurisprudence requiring subjective mens rea for the breach of probation offence further supports asubjective mens rea for the failure to comply offence.

The offences of breach of probation (s. 733.1) and failure to comply with bailconditions (s. 145(3)) are similar offences, which both arise from an accused’s breach of conditions set out in a court order. In R. v.Docherty, (SCC), [1989] 2 S.C.R. 941, the Court determined that a subjective mens rea was required for the breach ofprobation offence. That offence used the words “wilfully” and “refuses”, which reinforced the presumption of subjective fault, and arenot in s. 145(3).

However, even after the word “wilfully” was removed from the current breach of probation offence, most courtscontinue to interpret the offence to require subjective mens rea, based on this Court’s reasoning in Docherty and the fact that the removalof the word “wilfully” does not on its own indicate an intent to create an objective mens rea offence (see, e.g., R. v. Eby, 2007 ABPC 81,77 Alta. L.R. (4th) 149; R. v. Bingley, 2008 BCPC 245, at para. 18 ; R. v. Laferrière, 2013 QCCA 944, at paras. 82-83 ;R. v. John, 2015 ONSC 2040, at para. 16 ; contra, R. v. Bremmer, 2006 ABPC 93, at paras. 3-7 ).

[ 51 ] Beyond the text of s. 733.1, the Court in Docherty found that subjective mens rea was supported by the presumption of subjective fault, the possibility of imprisonment if an accused was convicted, and the purpose of the provision to deter people from breaching their probation orders (pp. 950-52). These factors similarly favour a subjective mens rea for s. 145(3).

And the point of differentiation, that a probation order governs the behaviour of someone who has already been convicted of a crime while bail conditions primarily restrict the civil liberties of those who are presumed innocent of the underlying offence, further supports a subjective fault element for s. 145(3) (see, e.g., M. Manikis and J. De Santi, “Punishing while Presuming Innocence: A Study on Bail Conditions and Administration of Justice Offences” (2019), 60 C. de D. 873, at pp. 879-80). E.

Section 145(3) in the Legislative Scheme [ 52 ] A subjective fault requirement for s. 145(3) is consistent with: (1) the penalties and consequences which flow from conviction under s. 145(3); (2) the role of s. 145(3) within the legislative framework for reviewing and enforcing bail conditions; and (3) the restrained and individualized approach to granting bail and imposing bail conditions.

(1) The Consequences of Charges and Conviction of Failure to Comply [ 53 ] While in general the “range of punishments says little about the required fault element” for most offences ( A.D.H. , at para. 72 ), s. 145(3) is different from other offences as it may criminalize otherwise lawful conduct, charges can accumulate quickly, and convictions, and even charges, impact the accused’s ability to obtain bail in the future.

Therefore, the multiple serious consequences which flow from a conviction, or even a charge under s. 145(3), demonstrate Parliament’s acceptance of subjective fault for this crime. [ 54 ] A conviction under s. 145(3) has profound implications for the liberty interests of the offender.

Parliament has imposed up to a two-year term of imprisonment for conduct, which in many cases was not otherwise criminal, was without violence or a victim, and not only occurred when the accused was presumed innocent of the underlying offence, but may result in criminal liability even if the accused is acquitted of that underlying charge. In addition to possible imprisonment for up to two years for each offence, there is the real prospect of further conditions being imposed as part of the sentence.

A conviction under s. 145(3) creates or adds to that person’s criminal record, with the associated stigma and difficulties this can bring in respect of employment, housing, and family responsibilities. [ 55 ] A charge under s. 145(3) also has serious negative consequences for the legal position of a person on further bail hearings prior to conviction. The mere fact of being charged under s. 145(3) places a reverse onus on accused persons to show why they should be released on bail again, whether prior to their hearing for their s. 145(3) charge or the underlying charge (s. 515(6)(c)).

As a result, the accused who fails to discharge the reverse onus may not receive bail on the brea

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