• Lewis Waring

Individualizing Bail Compliance - Evan Kwong

In R v Zora (“Zora”), 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 in 2015. He was granted bail on his own recognizance with conditions. There were twelve bail conditions in total, the most important of which being that Mr. Zora was required to present himself at the door of his residence within five minutes of a peace officer or bail supervisor attending to confirm his compliance with the bail conditions. The police arrived at Mr. Zora’s residence almost every day following his release from custody on September 17th, 2015 until two days on which his alleged breaches occurred in October 2015. Mr. Zora failed to present himself at his door on two occasions during the Thanksgiving weekend, October 9th and 11th. As such, Mr. Zora was charged with two counts of breaching his curfew condition and two counts of failing to answer the door.

Mr. Zora, along with his mother and girlfriend, testified that, due to the events occurring over the Thanksgiving weekend, he was unable to hear the ringing of the doorbell or the knocking on the front door. In fact, he was not even aware that he missed the police at his door until two weeks later when he was charged with breaching his bail conditions. Mr. Zora was recovering from a heroin withdrawal and was cooped up in his downstairs bedroom, which was on the other side of the residence, far away enough that he would not be able to hear anyone at the door. The accused also testified that he was tired and retiring early due to his withdrawal symptoms.

Mr. Zora was charged under s. 145(3) of the Criminal Code for failing to comply with his bail conditions. Parliament has made it a criminal offence to breach bail conditions under the aforementioned section, carrying a maximum sentence of two years’ imprisonment. As the offence is of a criminal nature, both the actus reus and mens rea must be present in order for Mr. Zora to be criminally charged. The actus reus in this case has been established by the accused’s failure to answer the door when police arrived. Determining the mens rea in this case proved to be a more difficult task.

The trial judge acquitted Mr. Zora on the alleged curfew allegations as it was not proven beyond a reasonable doubt that the accused had been outside of their house at the time. Mr. Zora was still convicted for failing to appear at the door for curfew compliance checks and was fined a total of $920 as they were obliged to “arrange life to comply with the terms of bail”. The summary conviction appeal affirmed this decision, dismissing the appeal on the basis that objective mens rea was sufficient for a conviction under s. 145(3). The British Columbia Court of Appeal also concluded that s. 145(3) only requires an objective mens rea based on the text, context, and purpose set out by Parliament.

On appeal at the Supreme Court of Canada, the main issue in Zora was whether the mens rea for s. 145(3) ought to have been subjective or objective. Advantages of a subjective mens rea requirement would be that courts would consider personal circumstances, mirroring the individualized manner in which bail conditions are determined, rather than solely assessing whether the accused’s behavior was a marked departure from that of a reasonable person subject to the same conditions.


S. 145(3) and Bail Conditions


A hallmark of our justice system is the assumption that people are innocent before proven guilty. When considering this concept in the context of conditional bail, it is not surprising that the SCC ruled that s. 145(3) ought to require a subjective mens rea. The SCC highlighted that the role of s. 145(3) in cases of conditional bail is to govern the behaviour of someone that has not been convicted, and thus should be presumed innocent. Based on that fact, the SCC unanimously found that a subjective fault requirement for s. 145(3) was consistent with “the penalties and consequences which flow from conviction under s. 145(3), the role of s. 145(3) within the legislative framework, and the restrained and individualized approach to granting bail and imposing bail conditions”. In the end, the SCC ordered a new trial in order to determine whether Mr. Zora knowingly or recklessly breached the conditions of his bail.

The decision in Zora is important for numerous reasons. Criminal charges can arise from activities that would otherwise not be criminal offences, which calls into question the effect of s. 145(3) on one’s s. 7 and s. 11(e) rights. S. 11(e) was touched on in the decision of the case, with the SCC recognizing that bail conditions are often imposed arbitrarily and unreasonably, contrary to the Charter. Justice Martin stated that “judicial officials should be wary of conditions that may be directed to symptoms of mental illness. That includes alcohol and drug abstinence conditions for an accused with an alcohol or drug addiction”. She also affirmed that there is insufficient individualization of bail conditions, adding that the likelihood of an accused person being charged with breaching a bail condition increases with the number of conditions that are added on.

Bail conditions have also been found to disproportionately affect communities that are over-policed and over-criminalized, in particular those that are poor or have addictions. These vulnerable people, who often do not have proper counsel, may agree to onerous terms in exchange for their liberty. When the conditions for bail are set disproportionately and without regard to the individual, issues arise where the liberty of a supposed innocent person is being unjustly restricted. This can have the effect of creating a vicious cycle in which an innocent person fails to comply with bail condition not related to their initial charge.

Indigenous people have been disproportionately affected by the boilerplate-style of s. 145(3) enforcement. This issue has already been highlighted in R. v. Gladue, in which, according to Jillian Anne Rogin, a principle was established that bail judges “be alive to the ways in which the bail system, in its current operation, exacerbates systemic disadvantage for Aboriginal accused”. The effect of residential schools on Indigenous communities still lingers today, and bail judges ought to be mindful of this fact when setting bail conditions. The judgement from R. v. Zora provides a perspective through which the courts can consider new bail principles which give more concern to how bail conditions ought to be set given the potential criminal liability that can arise from them.


An individualized approach to bail compliance


Overall, the judgement in Zora has provided much needed perspective on the enforcement of s. 145(3). The setting of bail should be an individualized process based on the concept that people are innocent before proven guilty. This improved interpretation of s. 145(3) which requires a subjective mens rea allows for a more individualized approach which better protects the rights and interests of individuals enshrined in the Charter.

Check out the Robson Crim MLJ
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