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CRIMINAL CODE OFFENCES - Offences against the administration of law and justice - Escapes and rescues - Breach of undertaking or recognizance

Thursday, June 18, 2020 @ 2:14 PM  

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Appeal by Zora from a decision of the British Columbia Court of Appeal affirming his convictions for failure to comply with a condition of a recognizance. The appellant had been granted bail on his own recognizance after being charged with three counts of possession for the purpose of trafficking. A condition of the recognizance required the appellant to present himself at the door of his residence within five minutes of a peace officer attending to confirm his compliance with his house arrest condition. Twice on one weekend, the appellant failed to answer the door when police went to his residence to check that he was complying with his bail conditions. The appellant did not know he had missed the police at his door until two weeks later when he was informed he was being charged with two counts of breaching his condition to answer the door. The appellant, his mother and his girlfriend testified they were all at home at the time of the police checks. The appellant testified it was difficult to hear the doorbell from his bedroom and that he had been tired that weekend because he was withdrawing from heroin and on methadone treatment. The appellant was convicted at trial. His appeals were dismissed on the basis that s. 145(3) of the Criminal Code only required an objective mens rea.

HELD: Appeal allowed; new trial ordered. The Crown was required to prove a subjective mens rea, that the appellant committed the breach knowingly or recklessly, in order to establish a breach of recognizance under s. 145(3) of the Criminal Code. From a constitutional perspective, most bail conditions restricted the liberty of persons who were presumed innocent and imposed a risk of further criminal liability because of the failure to comply offence under s.145(3). Therefore, the setting of bail conditions had to 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 Charter. Nothing in the text or context of s.145(3) suggested an intention by Parliament to depart from the long-standing presumption that Parliament intended crimes to have a subjective fault element. A subjective mens rea reflected the principles of restraint and review and mirrored the individual approach mandated for the imposition of bail conditions. The legislative history, context and purpose of s. 145(3), as well as the significant consequences associated with a charge or conviction under s. 145(3), required a subjective mens rea standard. The primary purpose of s. 145(3) was to sanction past behaviour and deter further breaches. It was not appropriate to apply the curative proviso in s. 686(1)(b)(iii) allowing the court to dismiss an appeal because there was “no substantial wrong or miscarriage of justice” despite an error of law. Mens rea was an essential element of a criminal offence and identifying the wrong fault standard was not a “harmless or trivial” error. Applying a subjective mens rea would have required the trial judge to consider the appellant’s state of mind, which clearly could have had an impact on the verdict. The evidence was not so overwhelming that a conviction was inevitable. A new trial was needed to address whether the appellant knowingly or recklessly breached his condition.

R. v. Zora, [2020] S.C.J. No. 14, Supreme Court of Canada, R. Wagner C.J. and R.S. Abella, M.J. Moldaver, A. Karakatsanis, S. Côté, R. Brown, M. Rowe, S.L. Martin and N. Kasirer JJ., June 18, 2020. Digest No. TLD-June152020011-SCC