R v Zora: SCC renews call for restraint when setting bail conditions
It’s no secret that Canada’s bail system is (still) broken.
Bail, or “judicial interim release”, is when an individual who is charged with a criminal offence is released from custody while awaiting trial. Section 11(e) of the Canadian Charter of Rights and Freedoms guarantees the right not to be denied reasonable bail without just cause. Frequently, bail courts will impose conditions on release, such as abstinence or no-contact requirements in order to protect the public from the accused. In reality, however, many of these conditions are punitive, unnecessary, or interfere with rehabilitation, especially for those living in poverty. Breaching a bail condition is an indictable offence under s. 145 of the Criminal Code, RSC 1985, c C-46 [the Code], even if the conduct at issue would not otherwise be criminal or the individual is acquitted of their original charge. In 2014, the Canadian Civil Liberties Association documented a “revolving door” of pre-trial detention driven by increasing prosecutions for breach of bail conditions. Provincial jails now hold more people who are legally innocent—awaiting trial or bail determination—than not, even as the overall crime rate has declined in recent decades.
The Supreme Court of Canada (“SCC”) previously addressed these issues in R v Antic, 2017 SCC 27 [Antic]. In that case, the Court criticized the overuse of cash bail requirements and affirmed the “ladder principle” for setting bail. This provides that “release is favoured at the earliest reasonable opportunity and…on the least onerous grounds” (Antic, para 67(d)). Any decision to impose a stricter form of release—to move up the “ladder” of conditions—must be clearly justified. This past summer, in R v Zora, 2020 SCC 14 [Zora], the Court took the analysis further. The SCC unanimously found that a conviction for breach of a bail condition requires the Crown to prove subjective mens rea. This means that an accused must have breached their bail condition either knowingly or recklessly. The Court also criticized the excessive use of bail conditions generally and set out a detailed framework for assessing whether such requirements are reasonably necessary.
What level of fault is required for breach of a bail condition?
Mr. Zora, who had been charged with drug offences, was subject to numerous bail conditions under s. 515 of the Code. He was required to present himself at the door of his home within five minutes when an officer or bail supervisor visited to verify he was complying with his curfew. Mr. Zora failed to do so twice during one weekend in October 2015. He was charged under s. 145(3) with two counts of breaching his curfew and two counts of breaching his condition to answer the door. At trial, Mr. Zora led evidence that on both occasions, he had gone to bed early because he was enrolled in a methadone treatment program. This made it difficult for him to hear someone at the door.
The trial judge acquitted on the alleged curfew violations but convicted on both counts of failing to appear at the door. Both the B.C. Supreme Court and a majority of the Court of Appeal dismissed Mr. Zora’s appeals, finding that s. 145(3) created a duty-based offence requiring only objective mens rea for conviction. An objective fault standard is based on whether the accused’s behaviour was a marked departure from that of a reasonable person subject to the same bail condition. The majority found that Mr. Zora’s behaviour was unreasonable. Justice Fenlon, concurring in the result, instead found that subjective mens rea was required. This stricter standard requires that the individual accused intended, knew of, or foresaw the consequences of their breach. However, Justice Fenlon determined that the Crown had met its burden of proof by showing that Mr. Zora was reckless, since he knew he might not hear the doorbell but had made no effort to address this risk.
The Supreme Court calls for reasonable bail conditions
The SCC unanimously allowed Mr. Zora’s appeal, quashed the convictions, and ordered a new trial on the counts of failing to attend at the door. Justice Martin found that a conviction under s. 145(3) requires proving subjective mens rea. The lower courts therefore erred in applying an objective standard. Justice Martin grounded her interpretation of s. 145(3) in the legislative scheme of the Code, the principles of reasonable bail as explained in Antic, and the context of excessive bail conditions in Canada. She also provided further guidance on the correct approach to setting such conditions.
Bail conditions: General principles
Justice Martin emphasized that the default form of bail for most crimes is release on an undertaking to attend trial. Additional bail conditions can only be imposed if they are clearly articulated, minimal in number, necessary, reasonable, the least onerous in the circumstances, and linked to the risks regarding the grounds for detention under s. 515 of the Code. These include securing the accused’s attendance in court, ensuring the protection or safety of the public, and maintaining confidence in the administration of justice. Release conditions must also be consistent with the presumption of innocence and s. 11(e) of the Charter. They must be imposed with restraint because they limit the accused’s liberty and create new sources of potential criminal liability personal to that individual. This requires the Crown to clearly justify imposing more restrictive conditions under the ladder principle. Although this approach is well-established, Justice Martin highlighted intervenor submissions that documented the continued, regular use of bail conditions that are unnecessary, unreasonable, unduly restrictive, too numerous, or effectively set up the accused to fail.
Section 145(3) requires proving subjective mens rea
This provision of the Code creates a “crime against the administration of justice” with a maximum penalty of two years’ imprisonment. Provincial appellate courts had previously split on whether s. 145(3) requires proving subjective or objective mens rea. Justice Martin noted that Parliament is presumed to have intended a subjective fault standard for crimes unless there is a clear legislative intention to the contrary. If the language of the offence is ambiguous or neutral in this regard, then the presumption has not been displaced. Contrary to the finding of the Court of Appeal, in this case nothing established a clear intent to create a duty-based offence. This is because bail conditions do not create the uniform, societal standard of conduct required for a general legal duty. Rather, Parliament has legislated the opposite: an individualized system that establishes specific bail obligations for each accused person.
Requiring subjective fault is also consistent with the serious consequences flowing from a conviction under s. 145(3), including possible imprisonment even if acquitted of the underlying criminal charge. Breach charges often accumulate quickly and require the accused to show why they should be released again in future. This can create a vicious cycle of increasingly numerous and onerous conditions, further breach charges, and incarceration. Finally, the intent of s. 145(3) is to punish and deter those who knowingly or recklessly breach their bail conditions. Parliament did not intend criminal sanctions to be the primary means of managing risks associated with individuals released on bail, given other available tools including bail review and revocation. Charges under s. 145(3) should therefore be a last resort.
Applying subjective mens rea under section 145(3)
Satisfying the fault requirement under s. 145(3) requires the Crown to prove two things. First, that the accused had knowledge of the conditions of their bail order or was willfully blind to those conditions. Second, that despite this knowledge, the accused knowingly or recklessly failed to act according to their conditions or was willfully blind to the circumstances of their actions. Genuinely forgetting a condition could therefore be a mistake of fact that would negate mens rea. In this case, Justice Martin ordered a new trial for Mr. Zora. She held that identifying the incorrect fault standard was more than a harmless or trivial error and the evidence was not so overwhelming that a conviction was inevitable. Mens rea is an essential element of a criminal offence and the trial judge was required to determine Mr. Zora’s state of mind at the time of the alleged breaches.
Defining “reasonably necessary” bail conditions
Justice Martin noted that “the number of unnecessary and unreasonable bail conditions, and the rising number of breach charges” points to insufficient individualization of bail in Canada (Zora, para 76). She identified several contributing factors including the speed of bail hearings and a culture of risk aversion. This encourages accused individuals to agree to onerous release terms rather than risk further detention, especially when they are self-represented or reliant on duty counsel. Such conditions disproportionately impact vulnerable and marginalized populations, including Indigenous people, those living in poverty, and those with addictions or mental illnesses. Conditions must always be justified, reasonable, and in accordance with the ladder principle. They cannot be gratuitous, punitive, or based on a generic risk of the accused committing further offences. To be reasonable, conditions “must be clear, minimally intrusive, and proportionate to any risk” and it must be realistic that the accused can and will meet them (Zora, para 87).
Justice Martin also noted that, other than the requirement to attend court, there should be no “boilerplate” bail conditions (Zora, para 100). She pointed out how many common conditions can be punitive in their effects on vulnerable communities. These include: abstinence requirements for individuals with addictions, which punish people for their mental illness; expectations that the accused “keep the peace and be of good behaviour”, which add an unnecessary layer of sanction to conduct that is already regulated by law; “no drug paraphernalia” conditions, which may lead to sharing of needles; and “red zone” restrictions that prevent an accused from entering a certain geographic area, which can isolate them from support services. In other words, “Bail conditions may be easy to list, but hard to live” (Zora, para 88). Everyone involved in the bail system has a positive legal obligation to ensure that conditions are imposed with restraint and address only appropriate risks.
Will the call be heard?
Justice Martin’s decision was well-received by defence lawyers and advocates for criminal justice reform. One of the intervenors, Pivot Legal Society, noted that, “The Court’s decision takes direct aim at the harmful feedback loop of criminalization to which bail conditions and subsequent breaches contribute.” The subjective mens rea standard will certainly require courts to more carefully consider the “personal circumstances and challenges” of an accused (Zora, para 29). Hopefully, this will reveal where breaches resulted from initially-unreasonable conditions. But the SCC also recognized that our bail system remains broken and provided a clear analytical framework for determining reasonably necessary conditions based on restraint.
As the Court acknowledged, there have been several developments on this issue since Mr. Zora was initially charged in 2015. In 2019, partly in response to the opioid overdose crisis, the Public Prosecution Service directed federal prosecutors not to seek abstinence, drug paraphernalia, or red zone restrictions for people with addictions. Parliament has also made several amendments to the bail provisions of the Code, adding an explicit “principle of restraint” and requiring particular attention to the circumstances of Indigenous and other vulnerable accused persons. Section 145(3) was amended to address failure to comply offences separately from breaches of no-communication orders. Finally, Parliament created a new “judicial referral hearing” process to divert certain failure to comply offences away from prosecution.
While these are important steps toward reducing criminalization of bail breaches, the problem is that many of these legal principles are not new. For exactly the reasons identified by Justice Martin, our risk-averse, overwhelmed, and inequitable bail system continues to perpetuate harm. To this point, the decision in Zora was released during the COVID-19 pandemic, when the risks of virus transmission are heightened in jails and courts have struggled to remain open at all. This makes granting efficient and reasonable bail, as well as pursuing decarceration of all forms, even more urgent. Clearly, more must be done to ensure the Supreme Court’s clear pronouncements on bail are actually implemented on the ground.