In a 4:1 opinion, the BC Court of Appeal ruled that breaches of recognizance (i.e. breaches of bail conditions) under section 145(3) of the Criminal Code require an objective, as opposed to a subjective, mental fault element (mens rea). An objective mens rea requires proof of a marked departure from what a reasonable person in the same situation would do – the Crown need not prove subjective intent to ground a conviction.
Zora was charged with several drug offences and was granted bail on the conditions that he obey a curfew and present himself at his front door within five minutes of a police officer attending at his home to ensure his compliance with the curfew. On two separate occasions, Zora failed to present himself at his front door when an officer attended to check up on him. As a result, he was charged with breaching his bail conditions. At trial, Zora testified that he was at his residence both times the officer attended, but was likely asleep, and that from where he slept it would be difficult to hear the doorbell or knocking. In addition, Zora testified that he was undergoing methadone treatment for his heroin addiction, which made him very sleepy.  The trial judge held that Zora’s explanation of possibly being asleep was not a lawful excuse and ultimately convicted him under section 145(3) for breaching his bail conditions.
Zora appealed the decision and the BC Court of Appeal considered whether an objective or subjective mens rea should apply to section 145(3). The majority reasoned that because bail offences are “duty-based” offences and because duty-based offences generally attract the objective fault standard, the objective fault standard should apply. Duty-based offences involve a failure to act where an individual has a “specific legal duty to act”.
Justice Fenlon dissented, and expressed the view that section 145(3) imported a subjective standard of mens rea, which is the default standard in Canada’s criminal law.  Subjective fault may be established where the accused intentionally commits the prohibited act, or does so recklessly with knowledge of the facts constituting the prohibited conduct, or is wilfully blind. Justice Fenlon saw no basis in the context or language of section 145(3) to displace the subjective standard. She further stated her concern that an objective fault standard “does not permit consideration of the inexperience, lack of education, youth, cultural experience, or any other circumstances of the accused” and would “criminalize the behaviour of a wide range of citizens who are challenged by mental disabilities and psychological and psychiatric disorders.”
This case will be heard at the Supreme Court of Canada, where the BCCLA will act as an intervener. The BCCLA will argue that a subjective mens rea should apply to section 145(3). The default subjective standard has been identified as an important value underlying our criminal law, which ensures that the morally innocent are not punished absent clear expressions of a different legislative intent.
The BCCLA is represented in this case by Roy Millen, Alexandra Luchenko and Danny Urquhart of Blake, Cassels & Graydon LLP, Vancouver.
The BCCLA’s factum in this case is available here.
