• Lewis Waring

Bail Conditions and Mens Rea - Noah Curle

In his 2017 song titled “Miss My Woe”, Radric Davis – better known by his stage name, Gucci Mane – sang, “Missing my woe/ Got money for bail, got money for bail/ Won’t stay in jail, won’t stay in jail”. Unfortunately, unlike Mr. Davis, there are many Canadian citizens who end up staying in jail shortly after posting bail because they have failed to comply with one of their bail conditions. A breach of a bail condition can become an indictable offence or result in a summary conviction under section 145(3) of the Criminal Code of Canada (“the Code”), which stipulates that “any person who is named in an appearance notice that has been confirmed by a justice…who fails, without lawful excuse, to appear at the time and place stated in the notice…is guilty”. However, one unclear aspect of the law is whether the Crown must prove there was subjective mens rea, or if they can simply rely on an objective standard when determining fault. In R v Zora (“Zora”), a recent decision by the Supreme Court of Canada (“the Court”), this controversy was soundly put to rest.


Failing to answer the door leads to questions of bail mens rea


In 2015, Mr. Zora was granted bail after being charged with possession of drugs for the purpose of trafficking. His bail order contained numerous conditions, including a curfew and a condition that he present himself at his front door within five minutes of his bail supervisor coming to check that he was following this curfew. On two separate occasions, Zora failed to show up at the door when someone came to check on him. He claimed that he was at home at the time and simply did not hear the doorbell ring because he was resting in his bedroom. As a result of the breach of his bail conditions, he was charged under section 145(3) for two counts of breaching his curfew and two counts of breaching his condition to answer the door.


During his initial trial, the trial judge acquitted him of the breach of curfew due to lack of evidence but found him guilty of breaching his condition to answer the door. On appeal, the summary conviction appeal judge reaffirmed the decision of the trial judge. In applying an objective fault standard, he found that Zora’s “behaviour was a marked departure from what a reasonable person would do to ensure they complied with their conditions” and the appeal was dismissed. Similarly, the appeal court found that applying an objective mens rea was appropriate when dealing with section 145(3) and again dismissed his appeal. However, when Zora was appealed again to the Court, it found that the mens rea for section 145(3) should be based on a subjective standard, not an objective one. A subjective fault standard would ask whether the accused actually intended or foresaw the consequences of his actions, rather than an objective standard which would ask whether a reasonable person in the position of the accused would have or ought to have known of the consequences. This finding was primarily based on the Court’s understanding of the underlying principles behind Parliament’s intent in criminalizing breaches of bail conditions.


The basic understanding of bail is that no conditions should be attached to the accused’s release unless there is just cause. This is established by section 11(e) of the Canadian Charter of Rights and Freedoms (“the Charter”). A “just cause” is considered anything which is enumerated under section 515(10) of the Code, which includes:

  • securing the accused’s attendance in court;

  • ensuring the protection or safety of the public; and

  • maintaining confidence in the administration of justice.”