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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

  • sufficiently linked to the accused’s risks regarding the statutory grounds of detention.

These grounds are stated in section 515(10) of the Code and they are related to the guarantee of the judicial process itself and to the protection and safety of the public.

The ladder principle, largely known in Canadian jurisprudence, requires that “the form of release imposed on an accused be no more onerous than necessary”. According to the court in Zora, only conditions specifically tailored to the individual circumstances can meet the required criteria of less onerous conditions.

Moreover, there are serious liberty risks in being convicted with failure to comply with a condition of an undertaking or recognizance. Even if someone ends up not convicted of the crime they were initially charged with, that person can still be convicted for failure to comply with bail conditions and get a sentence of up to 2 years imprisonment. Conviction under section 145(3) will negatively impact someone’s life as an offence will be added to the criminal record in addition to all the stigma associated with housing, employment, and family responsibilities in general. An accused person who is presumed innocent should retain their liberties following an arrest subject to the less onerous measures to mitigate risks to public protection and safety and risks to the administration of justice.

The fault element of section 145(3) of the Code has far-reaching implications for civil liberties and the fair functioning of the bail system in Canada. There is a direct link between what conditions can be imposed in a bail order and Parliament’s intent in criminalizing their breach. Therefore, the Court had to assess Parliament’s intent in criminalizing the breach of conditions under section 145(3) of the Code to determine the fault element in the case.

The presumption is that the Parliament intends for a crime to have a subjective fault element unless there is clear indication to rebut this presumption. When the offence is ambiguous in regard to the mens rea, which is the case in section 145(3) of the Code, then the presumption is the subjective fault element. The Court also argued that Parliament created the bail system based upon an “individualized process and the bail order is expected to list personalized and precise standards of behaviour.” Accordingly, there is no need to use a uniform objective standard of what a reasonable person would do in the circumstances of a bail condition to understand the obligation imposed to them.

The wording in section 145(3) of the Code is neutral and does not create a duty-based offence with objective mens rea. Having a reasonable bail is a right under section 11 of the Charter and the failure to comply with its conditions cannot be compared to a regulated activity in which someone engages in by choice such as owning an unauthorized firearm or impaired driving. Furthermore, the court in R v Docherty (“Docherty”) held that the subjective mens rea is the correct fault element in a breach of probation offence, which is a similar offence to that in Zora. That argument also helped the Court to reach the conclusion that subjective mens rea is the appropriate fault element for offences listed on section 145(3).

Assessing subjective mens rea

Subjective mens rea generally must be proven with respect to all circumstances and consequences that form part of the actus reus of the offence. To satisfy subjective mens rea, the Crown has to prove the following elements:

  1. The accused had knowledge of the conditions of their bail order, or they were wilfully blind to those conditions; and

  2. The accused knowingly failed to act according to their bail conditions, meaning that they knew of the circumstances requiring them to comply with the conditions of their order, or they were wilfully blind to those circumstances, and failed to comply with their conditions despite that knowledge; or

  3. The accused recklessly failed to act according to their bail conditions, meaning that the accused perceived a substantial and unjustified risk that their conduct would likely fail to comply with their bail conditions and persisted in this conduct.

The requirement that the accused has knowledge of or is wilfully blind to the bail conditions does not mean that the accused must have knowledge of the law but rather that he or she has the knowledge that they are breaching a condition. As mentioned in Docherty, in other words, an accused will only be deterred for breaching their conditions if they know they are doing something wrong and breaking the conditions that were previously set.

The second requirement of section 145(3) of the Code is that subjective mens rea can be established if it is proven that the accused acted knowingly or recklessly in breaching their conditions. To illustrate this with Mr. Zora’s case, it would mean that he chose not to answer the door even though he had knowledge that the police were outside. With regards to “act recklessly”, the Court in Zora held that knowledge of any risk of non-compliance is not sufficient to establish that an accused was reckless. Instead, the accused must be aware that his/hers continued conduct creates a substantial and unjustified risk of non-compliance with bail conditions.


In a narrow scope, the decision in Zora was important for the defendant because he got a new trial. In a more general scope, it means that the Crown must prove beyond a reasonable doubt that the accused acted with subjective mens rea. Likewise, Zora was essential to remember one more time that bail conditions should be minimal in conditions, less onerous and tailored to the individual’s specific circumstances. Many people that are in the criminal system are part of marginalized groups, whether arising from addiction, mental health problems, or systemic racism. Zora found that it was unreasonable to access their mens rea by a uniform objective standard of care because most times they live in very different circumstances than the rest of society and thus the reasonable person standard is unrealistic and unfair.

To finally set the subjective mens rea as the fault element for section 145(3) of the Code meant a huge step on the right direction to diminish charges for failure to comply with undertaking or recognizance which certainly contributes towards minimizing vicious cycles of the breaching of conditions and eventual imprisonment pre-trial, which goes against the legal principle of presumption of innocence.


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