The Mens Rea Defence – R. v. Zora - Prachi Sanghavi
Mens rea is latin for “guilty mind” and in criminal law, refers to the frame of mind an individual was in before committing a crime. 1 When evaluating mens rea, courts define it in one of two ways; subjective mens rea and objective mens rea. Subjective mens rea is when the accused had reasonable foresight in to the ramifications of their actions (i.e. they “[intend], [know] or [are] aware” 2 that they are going to partake in criminal action). On the contrary, objective mens rea is when the individual is unaware of their wrongdoings.
In the majority of criminal cases, accused parties are aware of the criminal nature of their actions. However, in some instances, this may not be the case. The breach of bail conditions is a common example. Section 11(d) of the Canadian Charter of Rights and Freedoms includes the presumption of innocence of the accused until they are proven guilty in court. 3 But while those individuals wait for their trial, they may be placed on conditional bail. Accused parties could be criminally charged for breaching the conditions of bail no matter the outcome of their trial and regardless of the fact that their breach may be non-criminal under normal conditions. In other words, the accused may be criminally charged for something as simple as going for a walk at night.
R. v. Zora
Zora was charged with drug crimes and the court granted him conditional bail. His bail included specific conditions regarding curfew which required “that he 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 curfew.” 4 Specifically, this requirement under the Criminal Code of Canada states that:
Every person who is named in an appearance notice that has been confirmed by a justice under s. 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
An indictable offence and liable to imprisonment for a term of not more than two years; or
An offence punishable on summary conviction. 5
During his bail term, Zora failed to answer the door to the police twice and was charged with “two counts of breaching his curfew and two counts of breaching his condition to answer the door.” 6 Zora disputed these charges on the grounds that it would have been too “difficult, if not impossible to hear the doorbell or someone knocking on the door.” 7 He was successfully acquitted on the curfew violations but the court held that he remained convicted of failing to answer the door. Both the Court of Appeal for British Columbia and the Supreme Court of British Columbia dismissed Zora’s appeal as they concluded that a reasonable person in Zora’s position would “ensure they complied with their bail conditions.” 8 And given their presumption, they stated that Zora had a “duty-based offence” 9 and “objective mens rea is sufficient for [such] a conviction.” 10
Upon the Supreme Court of Canada’s analysis of this case, the justices unanimously agreed that under s. 145(3) of the Criminal Code of Canada, the Crown needs to show evidence for subjective mens rea, not objective mens rea.
The Supreme Court of Canada came to their decision by taking into account various considerations. First, they confirmed that s. 145(3) has a neutral intent with regards to subjective or objective mens rea and/or fault of the accused. Next, they struck down both lower courts’ arguments of the “duty-based offence.” 11 They held that such a duty, a positive obligation, may only be required of “legal duties … with … a minimum uniform standard of conduct.” 12 In the given circumstance, what was required of Zora was a “personalized and precise standard of behaviour” 13 and thus, need not be compared to either “a uniform societal standard … [or] … a reasonable person.” 14 The only true comparison that could be made in this case was with the offence of the breach of probation. And in such a scenario, it has been established that a subjective mens rea is required. The Supreme Court of Canada’s next reason for their decision was that the subjective mens rea interpretation of s. 145(3) was consistent with the Criminal Code of Canada overall. Namely, it was in line with the intention of severity of s. 145(3) itself. If s. 145(3) were to be interpreted to require an objective mens rea, there would be a large probability of an unnecessary and unfair “vicious cycle.” 15 Even if the accused was acquitted of the original crime, they would have a criminal record, the onus of why they should be released on bail in the future would be on them, they may receive more stringent bail conditions in the future etc. The court found these risks too high to think that the intention of s. 145(3) required an objective mens rea. Furthermore, the purpose of s. 145(3) is to “deter those who knowingly or recklessly breach their bail conditions” 16 and not to penalize those who are unaware of the consequences of their actions as an objective mens rea interpretation would do. Also, the intention of deterrence would not be met in cases in which the individual does not know they are committing a crime. The Supreme Court of Canada states that the intention of bail conditions is to create a scenario that is “reasonable, necessary, least onerous, and sufficiently linked to the accused’s risk” and the lower courts’ interpretation would not achieve this. 17
Implications and Outcomes of the Ruling
For Zora, the Supreme Court of Canada’s ruling meant a new trial to decide whether he was aware that he was breaching the conditions of his bail.
Overall, this discourse on the interpretation of s. 145(3) of the Criminal Code of Canada has significant applications in dictating potential future cases. Generally speaking, this case filled a gap in the law allowing similar future interpretations of s. 145(3) to focus on subjective mens rea. The case also reinforced fundamental concepts of s. 11(d) of the Canadian Charter of Rights and Freedoms by emphasizing the notion that the accused is placed on bail as an innocent person. Most significantly, the verdict impacts future bail conditions. By setting out the intentions of s. 145(3), the Supreme Court of Canada expresses the need for lower courts to pause and re-evaluate when granting future bail conditions. The conditions need to be more specific to the accused (i.e. targeting if/how they are a risk to public safety) to reduce the number of “unnecessary and unreasonable bail conditions and the rising number of breach charges.” 18 Many cases that apply bail conditions have been shown to “disproportionately impact vulnerable and marginalized populations.” 19 Reducing the number of bail conditions will benefit these groups and manifest the true intention of s. 145(3).
1 “Case in Brief: R. v. Zora” (18 June 2020), online: Supreme Court of Canada https://www.scc-csc.ca/case-dossier/cb/2020/38540-eng.aspx [https://perma.cc/UQT4-S7WP]
3 Canadian Charter of Rights and Freedoms, s 11(d), Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
4 R. v. Zora, 2020 SCC 14 at para 2 [Zora].
5 Criminal Code, RSC 1985, c C-46, s 145(3).
6 Zora, supra note 4.
11 Ibid at para 7.
15 Zora, supra note 4 at para 8.
16 Zora, supra note 4 at para 9.
18 Zora, supra note 4 at para 10.