R v Zora: Time to Say Goodbye to ‘Keep the Peace and Be of Good Behaviour’ and Hello to a Subjective Mens Rea and Individualized Bail Conditions

Defence counsel across the country applauded a decision from the Supreme Court of Canada (“SCC”) handed down on June 18, 2020. In R v Zora, 2020 SCC 14 (“Zora”), the SCC unanimously ruled that an accused must subjectively know they are breaching their bail conditions to be convicted.

Mr. Zora was convicted by the lower courts in British Columbia for breaching his bail conditions after he failed to appear at his door twice when police stopped by for a curfew check on Thanksgiving weekend. The police had checked Mr. Zora’s curfew compliance almost every day between his release and the days where he incurred the said breaches. Mr. Zora testified at trial that he was unable to hear the doorbell in his bedroom at the far back of the house, where he was sleeping off withdrawal symptoms at the time the police stopped by. At trial, Mr. Zora was acquitted of the curfew breaches on the basis that the trial judge was not satisfied that it had been proven beyond a reasonable doubt that the accused was outside his residence during curfew hours. However, he was convicted of two breaches of his condition to come to the door for curfew check. The trial judge found that Mr. Zora had failed to “arrange life to comply with the terms of bail”, and likened the breaches to strict liability offences.

Both the summary conviction appeal judge and the British Columbia Court of Appeal (BCCA) applied an objective standard to determining the mens rea (the mental element of intention to commit a crime), and determined that an objective fault standard was sufficient to grounds a conviction pursuant to s. 145(3).[1] The SCC overturned the BCCA decision and ordered a new trial for Mr. Zora to be held with the subjective mens rea applied.

Conviction of a breach of bail conditions presents a unique scenario because an accused can be found innocent of their initial charge, yet still end up serving up to 2 years in jail for breaching bail conditions they were released on while awaiting trial or disposition of their matter. From a defence counsel perspective, this is a serious concern.

After years of inconsistent application of objective or subjective mens rea across the county, this is the first time the SCC has been asked to decide on the mens rea of breaches of bail conditions.  The unanimous decision by the SCC bench is welcomed by defence counsel. The SCC went through a comprehensive analysis of the bail system and highlighted many principles that should be applied by the prosecution, defence, and judiciary throughout the bail process.

Ultimately, the SCC determined that the Crown must be satisfied of the following 2 aspects to satisfy the subjective mens rea:

1. The accused had knowledge of the conditions of their bail order or were willfully blind to those conditions; and
2. Either the accused knowingly failed to act according to the bail conditions or they were willfully blind to those circumstances and failed to comply despite that knowledge, or the accused recklessly failed to act according to the conditions, meaning they perceived a substantial and unjustified risk that their conduct would likely fail to comply with the conditions and persisted in this conduct (Zora at para 109).

However, this is not all the Court had to say in this decision. The decision is lengthy, with numerous principles being reiterated and renewed for application going forward:

• Bail conditions are only to be imposed if they are clear, necessary, reasonable, and sufficiently linked to the accused’s risk of the following:
  • Securing attendance to court;
  • Ensuring the protection or safety of the public; or
  • Maintaining confidence in the administration of justice (Zora at paras 1 and 6). 
• As few conditions should be imposed for bail as possible. 
• Bail conditions must be tailored to the accused’s individual circumstances – boiler plate conditions such as “keep the peace and be of good behaviour” must be rigorously reviewed when proposed as a condition. 
• Setting bail conditions must balance the presumption of innocence and the right to not be denied reasonable bail without just cause under s. 11(e) of the Charter. 
• The courts must continue to apply the “ladder” principle, which is codified in s. 515(1) to s. 515(3) of the Criminal Code. The “ladder” principle dictates that the Courts must consider release on fewer and minimally onerous conditions before considering release on more onerous conditions (Zora at paras 21 and 24). The “ladder” principle is presided on the foundations bail principle of restraint. 
• The rise in breach of bail conditions indicates a lack of restraint in imposing excessive bail conditions and insufficient individualization of bail conditions. 
• Failing to individualize bail conditions disproportionately impacts vulnerable and marginalized populations, including Indigenous people and those experiencing addiction, poverty, and/or mental illness.
  • Conditions should not be behaviour-based (ie. must abstain from alcohol for someone who suffers from alcoholism), as these can sometimes do harm to the accused or result in a likelihood of breach) (Zora at para 85).
  • Conditions must be necessarily linked to the risks set out in s. 515(10). This means that conditions must reduce the risks pursuant to s. 515(10) that might otherwise prevent an accused person from being released. Conditions that are not necessary but appear positive or rehabilitative, such as therapeutic conditions, must not be imposed. 
• The Crown, defence counsel, and judicial officials all have obligations to respect the principles of restraint and review when it comes to setting bail conditions. 
• It is now clear that the mens rea for bail offences is to be measured by a subjective standard. The SCC offered the following reasoning when coming to this decision:
  • The presumption of subjective fault cannot be displaced by the wording of s. 145(3);
  • The individualized bail process and conditions excludes the ability to apply uniform standards of conduct or concepts such as a “marked” or “mere” departure;
  • Bail is not a regulated activity that is entered into voluntarily; and
  • A breach of probation requires a subjective mens rea, which is similar to a breach of bail conditions.

It remains to be determined how the Crown and judicial officials will apply these new principles going forward. Moving forward, this may mean advocating against the use of conditions such as “keep the peace and be of good behaviour” or “appear before the court when required” in consent release discussions, or opposing the imposition of therapeutic conditions such as attendance at counselling where such conditions are not reasonable nor necessary to mitigate the risks pursuant to s. 515(10). This is of particular importance given that the individualized nature of bail conditions can generate potential new sources of criminal liability for an accused person that is presumed innocent of the underlying offence that is the subject of their bail order (Zora at para 6). While a condition such as “keep the peace and be of good behaviour” may not seem inappropriate at first blush, the imposition of such a condition can result in further breaches that put the client in a reverse onus position at future bail hearings.

Zora calls on both Crown and defence counsel to carefully guard against the imposition of unnecessary bail conditions in consent release agreements and in proposing release conditions in show cause hearings. While the ultimate review of any bail proposal is up to the discretion of the bail judge, counsel plays a very important role in proposing bail orders that are appropriate, minimally intrusive and proportionate to risk. This decision is encouraging from a defence counsel perspective and we are prepared to advocate for individualized bail conditions with minimal infringement on freedoms for each of our clients.