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Zora decision finds subjective mens rea applies to bail conditions, breaches

SCC says courts should look at personal circumstances, particularly when bail is unintentionally breached

Zora decision finds subjective mens rea applies to bail conditions, breaches
Christine Mainville

Criminal defence lawyers are praising a Supreme Court decision that could force Crown attorneys, judges and justices of the peace to think carefully before enforcing needlessly harsh bail rules that “set the accused up to fail.” 

The June 18 decision, R. v. Zora, 2020 SCC 14, will help prevent cascading harm to clients accused of bail breaches, and will help ensure that accidental breaches of onerous conditions are not misconstrued as “lack of respect” for the law, says Matthew Nathanson, one of the lawyers who intervened for the Independent Criminal Defence Advocacy Society. 

"This is a watershed judgment on so many levels. The court has spoken with one voice, and has substantially and positively affected how the bail system will operate across Canada,” says Nathanson.

The decision centers on British Columbia appellant Chaycen Zora, accused of three counts of possession for the purpose of trafficking. While on bail in September and October, “the police came almost every day, at different times in the evening, to check his compliance with the curfew,” wrote Justice Sheilah Martin for the court. 

Zora was required to answer the door within five minutes, but he failed to answer twice in one month, over Thanksgiving weekend, at around 10:30 p.m. Because guests were over, it was difficult to hear the bell, and Zora was sleeping off withdrawal symptoms in a bedroom on the far side of the house. Although Zora installed a video system to help prevent future missed doorbells, a lower court judge found he had failed to “arrange life to comply with the terms of bail.” 

In the decision, the court looked at whether personalized bail conditions meant that the breach of bail findings should also be personalized or “subjective,” particularly in evaluating whether a breach of bail was intentional or reckless.  The court allowed Zora’s appeals, quashing the convictions and ordering a new trial on the two counts of failing to attend at the door.

“[The SCC decision] clarifies the mental element for the breach of bail is subjective and not objective, which brings this area of the law into line with other analogous areas like breaches of probation. But the significance of the judgment goes much further than that. It reaffirmed the importance of the presumption of innocence and it's crucial part in the organization and application of the bail system,” says Nathanson.

In the decision, Martin raised several issues with Canada’s bail system: that the accused in bail hearings is presumed to be innocent and bail should not be punishment; that breaches of bail can continue to follow the accused and create a snowballing criminal record; that overly strict bail conditions can set accused up to fail; that these offences are “clogging” the system; and that a system of self-represented and risk averse litigants can lead people toward agreeing to stricter bail conditions.

“It's a great decision and very helpful. It very helpfully addresses broader issues with bail — in particular bail conditions,” says Christine Mainville, who acted for intervener Criminal Lawyers’ Association of Ontario.

“The court engaged with the call of intervenors to address broader issues, including how we end up with so many fail-to-comply charges in the system. . . .They engage with a problem that has long existed: of imposing overbroad and overly numerous conditions of release.”

According to Statistics Canada, around 60 per cent of adult criminal charges result in a guilty decision. Although those on bail are considered innocent until their charges are proven in court, Mainville says that in practice, “all of the participants tend to act as though the accused is guilty.”

“That can significantly impact the analysis and the determination of what does constitute an appropriate condition of release in the circumstances,” says Mainville. “That is why the default position should be a release without conditions or sureties.” 

In the decision, Martin wrote that while on bail, the accused may face criminal charges for skipping school or taking a sip of alcohol — which otherwise would not be criminal offences. 

“Those living in poverty or with addictions or mental illnesses often struggle to meet conditions by which they cannot reasonably abide,” wrote Martin, citing a report by the Canadian Civil Liberties Association that explained: “Canadian bail courts regularly impose abstinence requirements on those addicted to alcohol or drugs, residency conditions on the homeless, strict check-in requirements in difficult to access locations, no-contact conditions between family members, and rigid curfews that interfere with employment and daily life. Numerous and restrictive conditions, imposed for considerable periods of time, are setting people up to fail — and failing to comply with a bail condition is a criminal offence, even if the underlying behaviour is not otherwise a crime.” 

Martin wrote that only bail conditions that are necessary should be imposed. 

“If an accused is a flight risk, but poses no other risks, only those conditions that minimize their risk of absconding should be imposed. Similarly, if an accused poses a risk to public safety and protection, only the least onerous conditions to address that specific threat should be imposed,” wrote Martin. “A condition that merely seems ‘good to have,’ but is not necessary for the accused’s release, is not appropriate . . . . Even if some condition is thought to be therapeutic, intended to help, or “couldn’t hurt,” the prospect of additional criminal liability under s. 145(3) means any such limits on otherwise lawful behavior may also attract criminal penalties.” 

Because bail breaches can result in criminal penalties, people can face imprisonment even if they are never convicted for the crime they were first charged with, the decision noted. In Zora’s case, the victimless  offence of failure to answer a door twice on one weekend resulted in four separate charges.  In 2016 to 2017, Martin wrote, failure to comply with an order was the most serious offence charged in nine per cent of all completed adult criminal cases. 

“The Standing Senate Committee on Legal and Constitutional Affairs also found that failure to comply offences were clogging the courts despite being offences that are not ‘strictly indictable’ and ‘involve no harm to a victim,’ said Martin’s decision.

“In my view, despite high rates of criminal charges for failure to comply, 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.” 

Additionally, even uncontested bail hearings can present problems, wrote Martin, noting that 

“the timing and speed of bail hearings impacts accused persons by making it difficult to find counsel, resulting in many accused who are self-represented or reliant on duty counsel who are often given little time to prepare.”

“This process encourages accused persons to agree to onerous terms of release rather than run the risk of detention both before and after a contested bail hearing,” said Martin’s decision. 

Martin’s decision suggests questions courts should consider when setting bail, including whether the conditions are reasonable, proportional and necessary: “If released without conditions, would the accused pose any specific statutory risks that justify imposing any bail conditions?; If the accused is released without conditions, are they at risk of failing to attend their court date, harming public safety and protection, or reducing confidence in the administration of justice?;  If this condition was not imposed, would that create a risk of the accused absconding, harm to public protection and safety, or loss of confidence in the administration of justice which would prevent the court from releasing the accused on an undertaking without conditions?; Based on what is known of the accused, is it likely that their living situation, addiction, disability, or illness will make them unable to fulfill this condition?;  Is this condition sufficiently linked to the grounds of detention under s. 515(10)(c)? Is it narrowly focussed on addressing that specific risk posed by the accused’s release?; What is the cumulative effect of all the conditions? Taken together, are they the fewest and least onerous conditions required in the circumstances?” 

Nathanson calls this “strong guidance” and a “clarion call” for bail judges to exercise an independent obligation to scrutinize overboard bail conditions, even if both parties consent.

“I think it will absolutely assist in preventing unfair situations from occurring. . . .For example, someone who is addicted to alcohol having a no alcohol condition. That just sets somebody up for failure. The judgment [suggests] the courts should look at all those kinds of conditions very critically and be very careful not to impose them unless they're absolutely justified,” says Nathanson.  

“If you're going to use breaches of bail as potential aggravating factors in future sentencing proceedings, that the conviction for breaches of bail themselves have to be well founded . . . . If the court is going to interpret breaches of bail as demonstrating a subjective disregard for the law, then those convictions have to demonstrate a subjective mens rea — a subjective violation of the law. That's an issue of fundamental fairness, and I'm very pleased that the court accepted that argument.” 

Mainville says the decision solidifies the default position of bail with no conditions, except attending court. The Zora decision will factor into decisions by defence counsel, Crowns and courts, she says.

“Oftentimes defense counsel are placed in the position of a client who wants to get out as soon as possible — understandably — and is prepared to consent to very onerous conditions . . . . as opposed to having a contested hearing with an uncertain outcome,” she says.  “I think the biggest shift will be at bail hearings. And it will impact the Crown when they initially vet a candidate for release. So, I think they will be more cautious in the conditions they proposed and put forward to the court. The defence I think, has a stronger leg to stand on to resist unnecessary conditions of release or conditions that set the accused up to fail, which are not infrequent.”

 

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