• Lewis Waring

Subjective Mens Rea in Breach of Bail Conditions - Giovana Hessman Dalaqua

In R v Zora (“Zora”), Mr. Zora, had been charged with drug offences and was granted bail conditions which included a curfew time and the requirement that he present himself at the door of his residence within five minutes of a peace officer or bail supervisor attending the given address. He failed to present himself at the door when police attended and was charged under section 145 (3) of the Criminal Code (“the Code”):

145(3) Every person who is at large on an undertaking or recognizance given to or entered into before a justice or judge and is bound to comply with a condition of that undertaking or recognizance, (…) is guilty of (a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or (b) an offence punishable on summary conviction.

The defendant in Zora argued that he was home at the times the police went to his address but that he probably did not hear the doorbell from his bedroom. His mom and his girlfriend testified that he was in fact home at those times. Nonetheless, the trial judge convicted Zora on the two counts of failing to answer the door and both the summary conviction appeal judge and the appellate court dismissed his appeal. The appellate court concluded that objective mens rea is sufficient to convict someone under section 145(3) of the Code and that the mens rea should be based on what a reasonable person would do to ensure compliance with bail conditions.

The Supreme Court of Canada (“the Court”), on the other hand, had a different view on this matter. The Court argued that the setting of bail conditions must be consistent with section 11 of the Canadian Charter of Rights and Freedoms (“the Charter”), which states that any person charged with an offence is presumed innocent until proven guilty. Thus, the person should not be suffering any type of heavy punishments before conviction; bail conditions already restrict an individual’s liberty, and they should be:

  • minimal in number;

  • necessary;

  • reasonable;

  • the least onerous in the circumstances; and