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  • Lewis Waring

Mens Rea and Bail Conditions - Furyal Sadiq

Mens rea

If you have ever watched the popular Netflix show How To Get Away With Murder, you have probably heard Professor Keating played by Viola Devis explain to her students the concept of “mens rea” in the first episode. In subsequent episodes, we see this element of criminal law play out. But what exactly is mens rea and why is it a crucial element of a crime? Well, as Professor Keating explains to her students, mens rea is the “guilty mind”, it is the state of the mind required of an individual when committing a crime. When one embarks upon committing a crime, they must have the intention to commit the crime. This is necessary in order to prove guilt in a criminal trial. There are different types of mens rea standards, including negligence, recklessness, willful blindness, and general or specific intent. The standard of the mens rea can be different depending on the crime and wording in the Criminal Code (“the Code”). The mens rea element of a crime was analyzed by the Supreme Court of Canada (“the Court”) in R v Zora (“Zora”).

Bail conditions

Bail conditions are rules set out by the courts that one must follow while out on bail. Bail conditions are in place until a case comes to an end. There are certain crimes that do not allow for bail; these crimes that very severe in nature, such as: first degree murder, second degree murder, manslaughter, rape, sexual assault etc.. If the crime is not severe, then one can be granted bail, which was the case in Zora.

A breach by failing to answer the door

Zora is a 2020 decision by the Court. Chaycen Michael Zora was charged with possession of three counts of drug trafficking contrary to the Controlled Drugs and Substance Act (“the CDSA”) and was granted bail with conditions. The twelve bail conditions that the accused had been subjected to required that he:

  • ‘keep the peace and be of good behaviour’;

  • report to his bail supervisor as directed;

  • remain in the province of British Columbia unless consent was granted by his bail supervisor;

  • obey all rules and regulations of his residence;

  • remain in his residence except during the day in the company of his mother or father or a person approved by his bail supervisor and with the consent of his bail supervisor (referred to as the curfew or house arrest condition);

  • present himself at the door of his residence within five minutes of a peace officer or bail supervisor attending to confirm his compliance with his house arrest condition;

  • not possess any non-prescribed controlled substances;

  • not possess drug paraphernalia;

  • not possess or have a cell phone;

  • attend a residential treatment facility if he consented; and

  • not possess any weapon”.

On two occasions, the accused in Zora failed to answer the door and present himself when the police came to check up on him. His mother and girlfriend testified that he was home at the time police arrived but that he did not hear the doorbell. He was charged with two counts of breaching his curfew condition and two counts of breaching his condition to answer the door under section 145(3) of the Code.

S.145(3) of the Code states the following:

Every person who is named in an appearance notice that has been confirmed by a justice under section 508 or who is served with a summons and who fails, without lawful excuse, to appear at the time and place stated in the notice or the summons, as the case may be, for the purposes of the Identification of Criminals Act, or to attend court in accordance with the notice or the summons, as the case may be, is guilty of

  • (a) an indictable offence and liable to imprisonment for a term of not more than two years; or

  • (b) an offence punishable on summary conviction.

In order to prosecute Zora, the Crown was required to prove beyond a reasonable doubt that he did not comply with his bail condition. Both the mens rea and actus rea of the crime needed to be proven.

A retrial to reassess mens rea standards for bail breaches

An objective mens rea standard asks a court to look at what a reasonable person would have had knowledge of, done, and foresaw in the circumstances. A subjective mens rea standard looks at whether the accused intended, had knowledge of, or foresaw the consequences of their actions. The Court looked at the mens rea element of section 145(3) of the Code and found that Parliament did not have any reasons in the context of the events to give section 145(3) a subjective mens rea requirement. The text in the section does not suggest objective or subjective mens rea requirement; it is neutral.

The British Columbia Court of Appeal (“the BCCA”) in Zora had found that section 145(3) created a duty base offence, but the Court disagreed. Duty base offences where there was a requirement of a legal duty, a legal duty such as one that requires one to act towards another due to a legal obligation, would be considered a legal duty. It is a duty only if not acting upon it will result in serious harm or death. The breach of a bail condition is not comparable to a duty base offence and therefore does not fall in this category.

Next, the Court looked at the reasonableness of the bail conditions in section 145(3), utilizing the framework set out in R v Antic to analyze the Code’s bail provisions. Antic addressed the overuse of cash bail and sureties. The Code seems to suggest that the default position on bail conditions is to have none; whenever a condition is added, it limits one’s freedom. Bail conditions can be imposed if they fulfill the risk requirement under section 515(10) of the Code. The conditions must be reasonable and cannot go against existing legislation or the Canadian Charter of Rights and Freedoms (“the Charter”). Conditions must also be minimally impairing and such that the accused can reasonably meet them. The Court set out a series of questions that judges can ask when setting out bail conditions. When setting out bail conditions, a court must ask: is the condition needed, is it reasonable, does the condition satisfy the requirements under section 515(1)(c), and does it address the risk posed by the accused?

The Court ordered that Zora be granted a new trial to look at the facts and decide if he knew that he was breaching his bail conditions as well as if he posed a serious risk by breaching the conditions. The re-trial will look at the mens rea element of the breach in detail and decide if he did indeed meet all the elements to commit the crime under section 145(3). This is the first time the Court has looked at a case of this nature, and this will set precedent for future cases pertaining to bail conditions and the means rea standard.

The Court correctly found no mens rea

It is interesting to read the Court’s decision in Zora and the reasoning behind granting Mr. Zora a new trial. I have always been fascinated by the various elements of a crime, mainly due to the overly dramatic tv series I have subjected myself to. I first learned about mens rea a few years ago when watching How To Get Away With Murder and I found the concept intriguing; not only because the Crown can’t just prosecute for merely doing something contrary to the Code but because it goes to show that the defendant’s mental state matters in criminal trials. Not everyone who commits a crime does so with the intention of committing that crime and there can be several reasons, such as the one the Court explored in Zora. Zora did not know he was committing a crime and that can be a reason one commits a crime because they have no knowledge of the fact that their actions will result in criminal liability. I believe the Court came to the correct conclusion in Zora, it’s a standard to meet the mens rea element in context of bail breach. This will be helpful to future cases that deal with the issue of breaching bail conditions.


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