R. v. Zora

2020 SCC 14 | Supreme Court of Canada | June 18, 2020

Headnote

Criminal law — Failure to comply with conditions of undertaking or recognizance — Elements of offence — Mens rea — Accused convicted of failure to comply with conditions of undertaking or recognizance after failing to answer door when police attended his residence — Whether mens rea for offence of failure to comply with conditions of undertaking or recognizance is to be assessed on subjective or objective standard — Criminal Code, R.S.C. 1985, c. C-46, s. 145(3).

Z was charged with drug offences and was granted bail with conditions, including a curfew and a requirement 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. Z twice failed to present himself at his door when police attended, and was charged under s. 145(3) of the Criminal Code with two counts of breaching his curfew and two counts of breaching his condition to answer the door. Z led evidence that he was in his bedroom where it would have been difficult, if not impossible, to hear the doorbell or someone knocking on the door. The trial judge acquitted Z on the alleged curfew violations but convicted Z on the two counts of failing to appear at the door. A summary conviction appeal judge dismissed Z's appeal, concluding that objective mens rea is sufficient for a conviction under s. 145(3) and that Z's behaviour was a marked departure from what a reasonable person would do to ensure they complied with their bail conditions. The Court of Appeal dismissed Z's appeal. A majority of the court concluded that s. 145(3) created a duty-based offence that only requires an objective mens rea.

Held: The appeal should be allowed, Z's convictions quashed and a new trial ordered on the two counts of failing to attend at the door.

Under s. 145(3) of the Criminal Code, the Crown is required to prove subjective mens rea. The Crown must establish that the accused breached a condition of an undertaking, recognizance or order knowingly or recklessly. Accordingly, a new trial is required on the two counts charging Z with failing to attend at the door of his residence, in light of the lower courts' error of applying an objective standard of fault.

The default form of bail for most crimes is release on an undertaking to attend trial, without any other conditions. Bail conditions can be imposed, but only if they are clearly articulated, minimal in number, necessary, reasonable, the least onerous in the circumstances, and sufficiently linked to the accused's risks regarding the statutory grounds for detention in s. 515(10): securing the accused's attendance in court, ensuring the protection or safety of the public, or maintaining confidence in the administration of justice. The setting of bail conditions must be consistent with the presumption of innocence and the right not to be denied reasonable bail without just cause under s. 11(e) of the Canadian Charter of Rights and Freedoms. In addition, s. 515 of the Criminal Code codifies the ladder principle, which requires that the form of release and the conditions of release imposed on an accused be no more onerous than necessary to address the risks listed in s. 515(10). Only conditions specifically tailored to the individual circumstances of the accused can meet the required criteria. Bail conditions are intended to be particularized standards of behavior designed to curtail statutorily identified risks posed by a particular person and are to be imposed with restraint. Restraint is required because bail conditions limit the liberty of someone who is presumed innocent of the underlying offence and, through the offence in s. 145(3), create new sources of potential criminal liability personal to that individual accused.

Section 145(3) of the Criminal Code creates a hybrid offence that applies to breaches of conditions imposed on an accused by a court order when the accused person is released prior to trial, while awaiting sentencing, or during an appeal. It is a crime against the administration of justice and carries a maximum penalty of two years' imprisonment. Accused persons may therefore be subject to imprisonment under s. 145(3) if they breach a condition of their bail, even if they are never ultimately convicted of any crimes for which they were initially charged. In many cases, an accused person faces criminal sanctions for conduct which, but for the stipulated bail condition, would be a lawful exercise of personal freedom. Accordingly, the fault element under s. 145(3) has far-reaching implications for civil liberties and the fair and efficient functioning of bail in this country, and there is a direct link between what conditions may be imposed in a bail order and Parliament's intent in criminalizing their breach under s. 145(3).

Determining the mens rea of s. 145(3) involves discerning the fault standard intended by Parliament. The presumption is that Parliament intends crimes to have a subjective fault element unless there is a clear legislative intention to overturn the presumption. If the offence in the Criminal Code is ambiguous as to the mens rea, then the presumption has not been displaced. The text and context of s. 145(3) suggest that Parliament intended for subjective fault to apply. The wording in s. 145(3) is neutral insofar as it does not show a clear intention on the part of Parliament with regard to either the subjective or objective mens rea. The absence of express words indicating a subjective intent cannot on its own displace the presumption of subjective mens rea. Furthermore, nothing establishes a clear intention to create a duty-based offence which calls for an objective mens rea. Duty-based offences are directed at legal duties very different from the obligation to comply with the conditions of a judicial order. And, unlike these duty-based offences, bail conditions do not impose a minimum uniform standard of conduct having regard to societal interests rather than personal standards of conduct. Parliament legislated a bail system based upon an individualized process and the bail order is expected to list personalized and precise standards of behaviour. As a result, there is no need to resort to a uniform societal standard to make sense of what standard of care is expected of an accused in fulfilling their bail conditions and no need to consider what a reasonable person would have done in the circumstances to understand the obligation imposed by s. 145(3). In addition, the highly individualized nature of bail conditions excludes the possibility of a uniform societal standard of conduct applicable to all potential failure to comply offences. Bail conditions and the risks they address also vary dramatically among individuals on release, so it is not intelligible to refer to the concepts of a "marked" or "mere" departure from the standard of a reasonable person. The offence under s. 145(3) is not comparable to other objective fault offences, and reasonable bail cannot be compared to a regulated activity that is entered into voluntarily. Further, the offence of failure to comply with bail conditions is similar to the offence of breach of probation for which a subjective mens rea is required.

A subjective fault requirement is consistent with the penalties and consequences which flow from conviction under s. 145(3). A conviction has profound implications for the liberty interests of the offender, including imprisonment even if the offender is acquitted of the underlying charge or further conditions imposed as part of a sentence. A conviction under s. 145(3) creates or adds to that person's criminal record. Being charged under s. 145(3) also places a reverse onus on accused persons to show why they should be released on bail again. Previous convictions under s. 145(3) inform bail hearings for future offences and may lead to the denial of bail or more stringent bail conditions for future unrelated offences. Breach charges often accumulate quickly, leading to a vicious cycle of increasingly numerous and onerous conditions, more breach charges and eventually pre-trial detention. These serious consequences presuppose that the person knowingly, rather than inadvertently, breached their bail condition.

Parliament's intention to require subjective fault is further demonstrated by the distinct purpose of s. 145(3), being to punish and deter those who knowingly or recklessly breach their bail conditions. Parliament did not intend for criminal sanctions to be the primary means of managing any risks or concerns associated with individuals released with bail conditions. Such risks or concerns are to be managed through the setting of conditions that are minimal, reasonable, necessary, least onerous, and sufficiently linked to the accused's risk; variations to those conditions when necessary through bail reviews and vacating bail orders; and bail revocation when bail conditions are breached. Charges under s. 145(3) are not, and should not be, the principal means of mitigating risk. Bail review is the primary way to challenge or change bail conditions. Bail revocation under s. 524 of the Criminal Code and criminal charges under s. 145(3) work together to promote compliance with conditions of bail, but they serve distinct and different legislative purposes. Section 524 fulfills a risk management role; s. 145(3) exists to punish and deter. Section 145(3) is a means of last resort when other risk management tools have not served their purposes. Specific deterrence has little or no effect if an accused does not know they were doing anything wrong. An accused must know what standard of behaviour to meet and that their conduct is failing to meet that standard in order to be deterred from engaging in prohibited conduct.

The requirement that bail conditions must be tailored to the accused points to a subjective mens rea so that the individual characteristics of the accused will be considered when bail is set and if bail is breached. Requiring a subjective mens rea reinforces, mirrors, and respects the individualized approach mandated for the imposition of bail conditions. In practice, the number of unnecessary and unreasonable bail conditions, and the rising number of breach charges, indicates insufficient individualization of bail conditions. The majority of bail orders include numerous conditions of release which often do not clearly address an individual accused's risks. A culture of risk aversion contributes to courts applying excessive conditions. The expeditious nature of bail hearings generates a culture of consent which aggravates the lack of restraint in imposing excessive bail conditions and encourages accused persons to agree to onerous terms of release rather than run the risk of detention. Onerous conditions disproportionately impact vulnerable and marginalized populations, including those living in poverty or with addictions or mental illnesses, and Indigenous people. The presence of too many unnecessary, excessive and onerous conditions provides legislative context for finding no clear intention of Parliament to displace the presumed subjective fault standard for s. 145(3) and illustrates the need for restraint and careful review of bail conditions.

The principle of restraint and the ladder principle require anyone proposing bail conditions to consider what risks might arise if the accused is released without conditions. Only conditions which target the accused's risk in relation to flight, public protection and safety, or maintaining confidence in the administration of justice are necessary. A bail condition must attenuate a risk that would otherwise prevent release without that condition. Conditions cannot be imposed for gratuitous or punitive purposes and should not be behaviourally-based. They must be sufficiently linked to the defined statutory risks, as narrowly defined as possible to meet their objective, and reasonable. They will only be reasonable if they realistically can and will be met by the accused. They cannot contravene federal or provincial legislation or the Charter, and must be clear, minimally intrusive, and proportionate to any specific risk posed by the accused. The setting of bail is an individualized process and there is no place for standard, routine, or boilerplate conditions, whether bail is contested or the product of consent. All persons involved in the bail system are required to act with restraint and to carefully review bail conditions they propose or impose. The Crown, defence, and the court all have obligations to respect the principles of restraint and review. Ultimately, the obligation to ensure appropriate bail orders lies with the judicial official. These obligations carry over to consent releases.

Subjective mens rea under s. 145(3) can be satisfied where the Crown proves: (1) the accused had knowledge of the conditions of their bail order or were wilfully blind to those conditions; and (2) either the accused knowingly failed to act according to the bail conditions or they were wilfully blind to those circumstances and failed to comply with the conditions, or the accused recklessly failed to act according to the conditions, meaning the accused perceived a substantial and unjustified risk that their conduct would fail to comply with the bail conditions and proceeded despite that risk.

In the instant case, a new trial should be ordered in light of the error in law by the courts below in applying an objective rather than a subjective standard of fault. The curative proviso in s. 686(1)(b)(iii) does not apply, as the trial judge did not make the factual findings necessary to support conviction on a subjective standard. The evidence is not so overwhelming that a conviction is inevitable, and the trial judge's negative credibility findings regarding defence witnesses preclude an acquittal without further fact-finding.

Cases Cited

Referred to: R. v. Antic, 2017 SCC 27, [2017] 1 S.C.R. 509; R. v. Ludlow, 1999 BCCA 365, 125 B.C.A.C. 194; R. v. Tunney, 2018 ONSC 961, 44 C.R. (7th) 221; R. v. Pearson, 1992 52 (SCC), [1992] 3 S.C.R. 665; R. v. Morales, 1992 53 (SCC), [1992] 3 S.C.R. 711; R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328; R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250; R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103; R. v. Myers, 2019 SCC 18, [2019] 2 S.C.R. 105; R. v. Schab, 2016 YKTC 69, 35 C.R. (7th) 48; R. v. Prychitko, 2010 ABQB 563, 618 A.R. 146; R. v. Penunsi, 2019 SCC 39, [2019] 3 S.C.R. 91; R. v. McCormack, 2014 ONSC 7123; R. v. Burdon, 2010 ABCA 171, 487 A.R. 220; R. v. Rowan, 2018 ABPC 208; R. v. Hundal, 1993 120 (SCC), [1993] 1 S.C.R. 867; R. v. Creighton, 1993 61 (SCC), [1993] 3 S.C.R. 3; R. v. Naglik, 1993 64 (SCC), [1993] 3 S.C.R. 122; R. v. Custance, 2005 MBCA 23, 194 C.C.C. (3d) 225; R. v. Legere (1995), 1995 1551 (ON CA), 22 O.R. (3d) 89; R. v. Lemay, 2018 QCCS 1956; R. v. J.A.D., 1999 SKQB 262, 187 Sask. R. 95; R. v. Howe, 2014 NBQB 259, 430 N.B.R. (2d) 202; R. v. Mullin, 2003 YKTC 26, 13 C.R. (6th) 54; R. v. Selamio, 2002 NWTSC 15; R. v. Josephie, 2010 NUCJ 7; R. v. Ritter, 2007 ABCA 395, 422 A.R. 1; R. v. Loutitt, 2011 ABQB 545, 527 A.R. 212; R. v. Lofstrom, 2016 ABPC 197, 39 Alta. L.R. (6th) 367; R. v. Al Khatib, 2014 NSPC 62, 350 N.S.R. (2d) 133; R. v. A.M.Y., 2017 NSSC 99; R. v. L.T.W., 2004 2897; R. v. Companion, 2019 119787; R. v. Hammoud, 2012 ABQB 110, 534 A.R. 80; R. v. Qadir, 2016 ABPC 27; R. v. Osmond, 2006 NSPC 52, 248 N.S.R. (2d) 221; R. v. Brown, 2012 NSPC 64, 319 N.S.R. (2d) 128; R. v. Foote, 2018 38297; R. v. A.D.H., 2013 SCC 28, [2013] 2 S.C.R. 269; R. v. Sault Ste. Marie, 1978 11 (SCC), [1978] 2 S.C.R. 1299; Rizzo & Rizzo Shoes Ltd. (Re), 1998 837 (SCC), [1998] 1 S.C.R. 27; R. v. Holmes, 1988 84 (SCC), [1988] 1 S.C.R. 914; R. v. Moser (1992), 1992 2839 (ON CA), 7 O.R. (3d) 737; R. v. Goleski, 2014 BCCA 80, 307 C.C.C. (3d) 1, aff'd 2015 SCC 6, [2015] 1 S.C.R. 399; R. v. Santeramo (1976), 1976 1456 (ON CA), 32 C.C.C. (2d) 35; R. v. Docherty, 1989 45 (SCC), [1989] 2 S.C.R. 941; R. v. Eby, 2007 ABPC 81, 77 Alta. L.R. (4th) 149; R. v. Bingley, 2008 BCPC 245; R. v. Laferrière, 2013 QCCA 944; R. v. John, 2015 ONSC 2040; R. v. Bremmer, 2006 ABPC 93; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089; R. v. Omeasoo, 2013 ABPC 328, 94 Alta. L.R. (5th) 244; R. v. Parsons (1997), 1997 14679 (NL CA), 161 Nfld. & P.E.I.R. 145; R. v. Morris, 2013 ONCA 223, 305 O.A.C. 47; R. v. Badgerow, 2010 ONCA 236, 260 O.A.C. 273; R. v. T.J.J., 2011 BCPC 155; R. v. Mehan, 2016 BCCA 129, 386 B.C.A.C. 1; R. v. Birtchnell, 2019 ONCJ 198, [2019] O.J. No. 1757 (QL); R. v. Coombs, 2004 ABQB 621, 369 A.R. 215; R. v. Murphy, 2017 YKSC 34; Ewert v. Canada, 2018 SCC 30, [2018] 2 S.C.R. 165; R. v. S.K., 1998 13344; R. v. McDonald, 2010 ABQB 770; R. v. K. (R.), 2014 ONCJ 566; R. v. D.A., 2014 ONSC 2166, [2014] O.J. No. 2059 (QL); R. v. Pammett, 2014 ONSC 5597; R. v. Clarke, [2000] O.J. No. 5738 (QL); R. v. Shoker, 2006 SCC 44, [2006] 2 S.C.R. 399; R. v. Manseau, [1997] AZ-51286266; R. v. Denny, 2015 NSPC 49, 364 N.S.R. (2d) 49; R. v. Grey (1993), 1993 17035 (ON CJ), 19 C.R. (4th) 363; R. v. D.R. (1999), 1999 13903 (NL CA), 178 Nfld. & P.E.I.R. 200; R. v. Gosai, [2002] O.J. No. 359 (QL); R. v. Doncaster, 2013 NSSC 328, 335 N.S.R. (2d) 331; R. v. A.D.B., 2009 SKPC 120, 345 Sask. R. 134; R. v. Delacruz, 2015 MBQB 32; R. v. Tithi, 2019 SKQB 299, [2019] S.J. No. 299 (QL); R. v. Sabados, 2015 SKCA 74, 327 C.C.C. (3d) 107; R. v. Goddard, 2019 BCCA 164, 377 C.C.C. (3d) 44; R. v. Nowazek, 2018 YKCA 12, 366 C.C.C. (3d) 389; R. v. Singh, 2011 ONSC 717, [2011] O.J. No. 6389 (QL); R. v. A.D.M., 2017 NSPC 77; R. v. Singh, 2018 ONSC 5336, [2018] O.J. No. 4757 (QL); Pappajohn v. The Queen, 1980 13 (SCC), [1980] 2 S.C.R. 120; R. v. Edgar, 2019 QCCQ 1328; R. v. Smith, 2008 ONCA 101, 233 O.A.C. 145; R. v. Brown, 2008 ABPC 128, 445 A.R. 211; R. v. Chen, 2006 MBQB 250, 209 Man. R. (2d) 181; R. v. Withworth, 2013 ONSC 7413, 59 M.V.R. (6th) 160; R. v. Syblis, 2015 ONCJ 73; R. v. Blazevic (1997), 31 O.T.C. 10; R. v. Hutchinson (1994), 1994 9157 (AB KB), 160 A.R. 58; R. v. Nedlin, 2005 NWTTC 11, 32 C.R. (6th) 361; R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411; Sansregret v. The Queen, 1985 79 (SCC), [1985] 1 S.C.R. 570; R. v. Hamilton, 2005 SCC 47, [2005] 2 S.C.R. 432; Leary v. The Queen, 1977 2 (SCC), [1978] 1 S.C.R. 29; R. v. Seymour, 1996 201 (SCC), [1996] 2 S.C.R. 252.

Statutes and Regulations Cited

Bail Reform Act, S.C. 1970-71-72, c. 37, s. 133(3) [in R.S.C. 1970, c. 2 (2nd Supp.), s. 4].

Canadian Charter of Rights and Freedoms, ss. 7, 11(e).

Controlled Drugs and Substances Act, S.C. 1996, c. 19.

Criminal Code, R.S.C. 1985, c. C-46, ss. 2, "justice", 19, Part IV, 145(2), (3) [ad. 2018, c. 29, s. 9(7)], (4), (5) [ad. 2019, c. 25, s. 47(1)], (5.1), 161(1) to (4), 215 to 217.1, 469, 493, "judge", 493.1, 493.2, 515, 518(1)(c)(iii), 520, 521, 522(4), 523(2), 523.1, 524, 680, 686(1)(b)(iii), 733.1, Part XXV, 811(a), (b).

Appeal

APPEAL from a judgment of the British Columbia Court of Appeal (Stromberg-Stein, Willcock, Savage, Fenlon and Fisher JJ.A.), 2019 BCCA 9, 370 C.C.C. (3d) 1, 53 C.R. (7th) 373, 2019 CarswellBC 77 (WL Can.), 2019 CarswellBC 78 (WL Can.), affirming the convictions of the accused for failure to comply with a condition of a recognizance. Appeal allowed.

Sarah Runyon, Garth Barriere and Michael Sobkin, for the appellant.

Éric Marcoux and Ryan Carrier, for the respondent.

Susan Reid, for the intervener the Attorney General of Ontario.

Susanne Elliott, for the intervener the Attorney General of British Columbia.

Christine Mainville, for the intervener the Criminal Lawyers' Association of Ontario.

Jason B. Gratl and Toby Rauch-Davis, for the intervener the Vancouver Area Network of Drug Users.

Alexandra Luchenko, Roy W. Millen and Danny Urquhart, for the intervener the British Columbia Civil Liberties Association.

Danielle Glatt, for the intervener the Canadian Civil Liberties Association.

Matthew Nathanson and Chantelle van Wiltenburg, for the intervener the Independent Criminal Defence Advocacy Society.

David N. Fai and Caitlin Shane, for the intervener the Pivot Legal Society.

Nicholas St-Jacques and Pauline Lachance, for the intervener Association québécoise des avocats et avocates de la défense.

Reasons for Judgment

Martin J. (Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe and Kasirer JJ. concurring) —

I. Introduction

[1] When individuals are charged with a crime, they are presumed innocent and have the right not to be denied reasonable bail without just cause. Most accused are not held in custody between the date of their charge and trial. Instead, they are released with or without conditions. Accused persons released on conditions may be charged with the criminal offence of failing to comply with those conditions under s. 145(3) of the Criminal Code, R.S.C. 1985, c. C-46 (the "Code"). Reflecting the problems with our bail system, failure to comply charges are one of the most common offences in Canada.

[2] Parliament made it a separate criminal offence to breach bail conditions under s. 145(3) of the Code. This is a crime against the administration of justice and carries a maximum penalty of two years' imprisonment.

[3] The appellant, Mr. Zora, appeals his convictions under s. 145(3) for twice failing to comply with his bail condition to answer the door when police went to his residence to check that he was complying with his curfew. The sole issue is whether the mens rea for the offence under s. 145(3) is subjective or objective.

[4] I conclude that the Crown is required to prove subjective mens rea and no lesser form of fault will suffice. Under s. 145(3), the Crown must establish that the accused committed the breach knowingly or recklessly.

[5] The parties and interveners recognize that the question of the mens rea requirement for s. 145(3) raises broader considerations about the functioning of our complex bail system. The breach of a bail condition can only be considered blameworthy — and therefore morally deserving of criminal sanction — if it is committed knowingly or recklessly. A charge of failure to comply with bail has serious and long-lasting consequences, not only for the accused charged with the offence, but also for the administration of criminal justice as a whole.

[6] All those involved in the bail system are to be guided by the principles of restraint and review when imposing or enforcing bail conditions. The principle of restraint requires any conditions of bail to be no more onerous than necessary, while the principle of review requires that any conditions imposed be revisited and challenged when they fail to meet these criteria. Bail conditions are tailored to individual accused, and all actors in the bail process bear obligations to ensure that they are minimal, reasonable, necessary, and least onerous.

[7] I approach these reasons as follows. First, I outline the factual background and judicial history of this appeal. Second, I review the legislative and constitutional framework of bail, which provides important context for the mens rea question at the heart of this appeal. Third, I consider the statutory interpretation question of whether s. 145(3) requires subjective or objective fault. Fourth, I outline how s. 145(3) informs the proper approach to imposing bail conditions, including the obligations of all participants in the bail system. Fifth, I describe the components of subjective mens rea for the failure to comply offence. Finally, I explain why a new trial is required.

II. Factual Background and Judicial History

[8] Mr. Zora was charged with three counts of possession for the purpose of trafficking contrary to the Controlled Drugs and Substances Act, S.C. 1996, c. 19, and was granted bail on his own recognizance. His release order contained numerous conditions, including a curfew and a requirement to answer the door of his residence within five minutes of a peace officer or bail supervisor attending to confirm compliance with the curfew.

[9] The police came almost every day, at different times in the evening, to check his compliance with the curfew in the approximately one month between the setting of bail and Thanksgiving weekend. Mr. Zora met this condition successfully for the entire month preceding the Thanksgiving weekend.

[10] On two evenings on Thanksgiving weekend, October 9 and 11, 2015, Mr. Zora failed to present himself at his door when police attended his residence. As a result, he was charged under s. 145(3) with two counts of breaching his curfew and two counts of breaching his condition to answer the door.

[11] Mr. Zora, his mother, and his girlfriend testified that they were all at home during the Thanksgiving weekend. Mr. Zora said it would have been difficult, if not impossible, to hear the doorbell or someone knocking on the door from his bedroom.

[12] The trial judge acquitted Mr. Zora on the alleged curfew violations as he was not satisfied beyond a reasonable doubt that Mr. Zora had been outside his residence, but convicted Mr. Zora on the two counts of failing to appear at the door. The trial judge applied an objective standard of fault and found that Mr. Zora's failure to answer the door was a marked departure from what a reasonable person would have done to ensure compliance with their bail conditions.

[13] The summary conviction appeal judge dismissed the appeal and concluded that objective mens rea was sufficient for a conviction under s. 145(3) and that Mr. Zora's behaviour was a marked departure from what a reasonable person would do to ensure they complied with their bail conditions.

[14] A five-judge panel of the British Columbia Court of Appeal dismissed the appeal (2019 BCCA 9, 53 C.R. (7th) 373). Stromberg-Stein J.A., writing for the majority, concluded that s. 145(3) is a duty-based offence that only requires objective mens rea.

[15] Fenlon J.A., concurring in the result, found that s. 145(3) required subjective fault. In her view, this was not a duty-based offence and neither the text nor legislative history of s. 145(3) supports objective fault. However, she concluded that a new trial was not warranted because the trial judge's findings of fact effectively established that Mr. Zora had knowingly failed to answer the door.

III. Legislative Background and the Context of Section 145(3)

[16] Section 145(3) is a hybrid offence that applies to breaches of conditions imposed on an accused by a court order prior to trial, while awaiting sentencing, or during an appeal. It is a crime against the administration of justice and carries a maximum penalty of two years' imprisonment.

[17] The predecessor to s. 145(3), s. 133(3), was introduced in 1972 through the Bail Reform Act, S.C. 1970-71-72, c. 37. It created an offence where an accused person who is "at large" on an undertaking or recognizance fails to comply with its conditions.

[18] Section 145(3) was amended in 2018 to remove the reverse onus on the accused to prove lawful excuse (S.C. 2018, c. 29, s. 9(7)). On December 18, 2019, s. 145(3) was further amended to restrict its application to breaches of conditions requiring the accused to refrain from communicating with a victim, witness or other person (S.C. 2019, c. 25, s. 47(1)).

[19] The parties and interveners recognize that the particular question before the Court needs to be situated within the complex legal and factual context of how our bail system operates. The fault element for a crime against the administration of justice necessarily implicates the system that creates the obligations the breach of which constitutes the offence.

[20] From a constitutional perspective, most bail conditions restrict the liberty of persons who are presumed innocent and impose a risk of further criminal liability. The Charter requires that bail conditions must be reasonable and consistent with the presumption of innocence.

[21] Section 515 of the Code governs how judicial officials are to exercise their discretion to grant bail, establishes the legal forms of bail, and lists the possible conditions of bail. The default position in the Code is bail without conditions. Conditions may only be imposed if they are necessary to address the risks listed in s. 515(10) — the accused's attendance in court, protection of the public, and confidence in the administration of justice.

[22] The Code provides for enumerated and non-enumerated conditions of bail. The enumerated conditions in s. 515(4) to (4.2) provide guidance regarding the most common types of conditions.

[23] Under s. 515(4)(f), judicial officials are also given flexibility to impose non-enumerated conditions, defined as: "such other reasonable conditions ... as the justice considers desirable."

[24] The jurisprudence mandates that judicial officials respect the ladder principle, meaning that they must consider release with fewer and less onerous conditions before imposing more stringent conditions. This principle requires that conditions imposed on an accused be no more onerous than necessary to address the risks listed in s. 515(10).

[25] Only conditions that are specifically tailored to the individual circumstances of the accused can meet these criteria. Bail conditions are thus intended to be particularized standards of behavior designed to curtail statutorily identified risks posed by a particular person.

[26] Many interveners drew attention to the widespread problems which continue to exist, even after this Court's decision in Antic, with the ongoing imposition of unnecessary and excessive bail conditions. These problems have been extensively documented by scholars, commentators, and reform advocates.

[27] Parliament also acted to address concerns regarding the over-criminalization of bail breaches, which is in part explained by the initial imposition of onerous conditions. The 2018 and 2019 amendments to s. 145(3) reflect Parliament's ongoing concern with the use of criminal sanctions for bail breaches.

[28] Although these amendments occurred after Mr. Zora was charged, the Court's interpretation of the mens rea in s. 145(3), based on the relevant text and context, applies with equal force to the offence as it existed at the time Mr. Zora was charged and as it was amended in 2018.

IV. Interpretation of the Mens Rea of Section 145(3)

A. Subjective and Objective Mens Rea

[29] The main issue in this appeal is whether the mens rea for s. 145(3) is subjective or objective. A subjective fault standard would focus on what the accused actually knew or intended. The Crown would be required to prove that the accused knowingly or recklessly breached a bail condition.

[30] Under objective mens rea, the question would be whether the accused's behaviour was a marked departure from the behaviour of a reasonable person in the same circumstances. No inquiry into the accused's actual state of mind would be required.

[31] This is the first time this Court has been asked to consider the mens rea for this offence. Courts across the country have divided on whether the fault element for s. 145(3) should be assessed on a subjective or objective basis.

B. Statutory Interpretation and the Presumption of Subjective Fault

[32] Determining the mens rea of s. 145(3) involves an exercise in statutory interpretation to discern the fault standard intended by Parliament. As a starting point, the general rule is that the criminal law presumes subjective fault.

[33] As described by this Court in A.D.H., this presumption of subjective fault reflects the underlying value in criminal law that the "morally innocent" should not be punished. It is a rebuttable presumption which requires a clear legislative indication that Parliament intended to displace it.

[34] Subsection 145(3) is a criminal offence, as indicated by its enactment in the Code, its purposes of deterrence and punishment, and its potentially severe consequences including imprisonment.

[35] In my view, neither the text of s. 145(3) nor its legislative history displace the presumption of subjective fault.

C. The Text of Section 145(3) Is Neutral and Does Not Create a Duty-Based Offence

[36] The text of s. 145(3) is neutral insofar as it does not show a clear intention on the part of Parliament with regard to either subjective or objective mens rea. The provision reads as follows:

[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, and every person who is at large on an undertaking or recognizance entered into before a justice or judge or who has given an undertaking referred to in subsection 499(3), and fails, without lawful excuse, the proof of which lies on them, to comply with that condition 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.

[37] I start by noting that the inclusion of the statutory defence of a "lawful excuse" in s. 145(3) plays no role in the interpretation of the mens rea of this offence. The removal of the reverse onus on the accused to prove lawful excuse through the 2018 amendments does not affect the fault element analysis.

[38] In evaluating whether there is an expression of legislative intent that displaces the presumption of subjective fault, courts look both to the text of the provision and its surrounding context.

[39] The majority of the Court of Appeal emphasized that the words "undertaking", "recognizance", "[b]ound to comply", and "[f]ails" indicate that the offence imposes a legal duty to comply with the conditions of a bail order and therefore requires only objective fault.

[40] The Crown also argues that the legislative history of s. 145(3) supports this interpretation, since when it was enacted, the then Minister of Justice described the offence as one that would ensure accused persons did not "disregard" the bail system.

[41] With respect, I disagree that either the text of s. 145(3) or the Minister's comments establish a clear intention to create a duty-based offence requiring objective fault. The word "fails" can connote neglect, but it also means acting contrary to the agreed legal duty or obligation and being unable to meet a set standard — all meanings that are equally consistent with either a subjective or objective standard.

[42] Second, there is a danger in putting too much weight on the word choice of one minister, especially when his statement does not clearly evince an intention of Parliament to create an objective mens rea offence. Contemporaneous commentary described the aim of these offences as to "ensure an accused [did] not disregard the new system with impunity", which seems to suggest a subjective mens rea.

[43] The Minister saying that a provision that establishes a criminal offence imposes a responsibility or duty in a general sense does not make it the type of duty-based offence that requires objective fault.

[44] Section 145(3) simply does not share the defining characteristics of those duty-based offences requiring objective fault, such as ss. 215 to 217.1 of the Code (failure to provide necessaries, dangerous operation of a motor vehicle, criminal negligence). Those duty-based offences impose positive obligations to act in certain identifiable relationships, address a duty owed to identifiable individuals, and invoke a uniform societal standard of conduct against which the accused's conduct is measured.

[45] Legal duties like those in ss. 215 to 217.1 tend to impose a positive obligation to act in certain identifiable relationships, address a duty owed to identifiable individuals, involve potentially fatal or grave consequences, and invoke a uniform societal standard of conduct. Section 145(3) is distinct because it is based not on a legal duty but on the specific conditions of an individualized judicial order.

[46] Further, the duty-based offences in Naglik and other objective mens rea offences involve legal standards that would be "meaningless if not interpreted objectively." In contrast, bail conditions are highly individualized, varying not only from accused to accused, but from one bail hearing to the next for the same accused.

[47] In addition, the lack of a uniform standard from which to assess the breach of bail conditions means that it is also not obvious what degree of departure would be "marked" enough to constitute the actus reus of the offence.

[48] Similarly, the offence in s. 145(3) is not comparable to other objective fault offences. Although a risk assessment is involved in setting bail conditions, the risk considered is that of the individual accused, not a uniform societal risk profile.

[49] Finally, reasonable bail is a right under s. 11(e) of the Charter and cannot be compared to a regulated activity that is voluntarily entered into. An accused person does not choose to be subject to bail conditions; they are imposed upon them as a condition of their pre-trial liberty.

D. Subjective Mens Rea Is Required for Breaches of Probation

[50] This Court's jurisprudence requiring subjective mens rea for the breach of probation offence further supports a subjective mens rea for the failure to comply offence. In Docherty, this Court held that the offence of breach of probation under s. 733.1 requires proof that the accused knowingly breached a term of their probation.

[51] Beyond the text of s. 733.1, the Court in Docherty found that subjective mens rea was supported by the presumption of subjective fault, the possibility of severe consequences, and the highly individualized nature of probation conditions. The same reasoning applies with equal force to s. 145(3).

E. Section 145(3) in the Legislative Scheme

[52] A subjective fault requirement for s. 145(3) is consistent with: (1) the penalties and consequences which flow from conviction under s. 145(3); (2) the role of s. 145(3) within the legislative framework; and (3) the connection between the setting of bail conditions and the operation of s. 145(3).

(1) The Consequences of Charges and Conviction of Failure to Comply

[53] While in general the "range of punishments says little about the required fault element" for most offences (A.D.H., at para. 72), s. 145(3) carries severe potential consequences that distinguish it from other offences and support requiring subjective fault.

[54] A conviction under s. 145(3) has profound implications for the liberty interests of the offender. Parliament has imposed up to a two-year term of imprisonment for the failure to comply offence. An accused person can be imprisoned for a breach of bail conditions even if they are ultimately acquitted of the underlying charge for which they were originally arrested.

[55] A charge under s. 145(3) also has serious negative consequences for the legal position of a person on further bail hearings prior to conviction on the underlying charge. A charge under s. 145(3) places a reverse onus on the accused to show why they should be released on bail again.

[56] Previous convictions under s. 145 may also inform bail hearings for any future offences (see s. 518(1)(c)(iii)). Convictions for failure to comply accumulate and compound over time: they lead to more stringent bail conditions for future charges and reduce the prospects of release.

[57] This is problematic because breach charges often accumulate quickly: Mr. Zora's failure to answer a door twice on one weekend resulted in four criminal charges for failure to comply. The vicious cycle of excessive bail conditions, breach charges, imprisonment, more bail conditions and further breach charges disproportionately affects marginalized groups, including Indigenous people, those with mental illness, and those living in poverty.

[58] The significant and long-lasting legal consequences of a charge or conviction under s. 145(3) support the existence of a subjective mens rea requirement. These serious consequences presuppose that the person knowingly, rather than inadvertently, breached their bail condition.

(2) The Role of Section 145(3) Within the Legislative Framework

[59] Parliament's intention to require subjective fault for s. 145(3) is further demonstrated by examining the role of this offence in the Code. Parliament did not intend for criminal sanctions to be the primary means of managing the risks associated with individuals released on bail.

[60] The respondent argued that s. 145(3) has become "a prime means of enforcing release conditions in order to mitigate the risks and concerns that the bail order was designed to address." However, this characterization of s. 145(3) is inconsistent with Parliament's intentions regarding how the bail system is to operate.

[61] Offences relating to the administration of justice represented about 1 in 10 police reported crimes in 2014. Failure to comply offences have more than quadrupled since 1986. This proliferation of failure to comply charges is a cause for serious concern.

[62] Professor Friedland, whose study Detention Before Trial contributed to significant reform of the bail system in the 1970s, has suggested that the growing use of these provisions means that the bail reform legislation has "come full circle" in some respects, recreating the very problems that the Bail Reform Act was designed to address.

[63] In my view, despite high rates of criminal charges for failure to comply, Parliament did not intend for criminal sanctions to be the primary means of mitigating the risks or concerns associated with accused persons released on bail. Three mechanisms exist to manage the risks of individuals on bail: the setting of appropriate conditions; bail review when conditions are no longer appropriate; and, as a last resort, bail revocation and criminal charges under s. 145(3).

[64] A bail review under ss. 520 and 521 is the primary way to challenge or change bail conditions which are not, or which are no longer, minimal, reasonable, necessary, least onerous, and sufficiently linked to a risk in s. 515(10).

[65] Parliament also enacted two tools to address breaches of bail conditions: bail revocation under s. 524 and criminal charges under s. 145(3). They serve different purposes in the legislative scheme.

[66] Revocation of bail occurs under s. 524. An accused may be arrested where there are reasonable grounds to believe that the accused has contravened or is about to contravene any order made under Part XVI of the Code, or that the accused has committed an indictable offence while released.

[67] Revocation under s. 524 ensures that those who do not follow bail conditions can be arrested to re-assess whether, and on what conditions, they should be released. The purpose of revocation is to reassess risk and, if warranted, return the accused to custody. It is thus primarily a forward-looking risk management tool.

[68] If detention is the proportionate result for the accused's breach of bail then revocation under s. 524 is the appropriate avenue. Bail revocation is distinct from a criminal charge under s. 145(3) and does not depend on an accused being culpable or blameworthy for the breach.

[69] In addition to revocation, Parliament enacted s. 145(3) of the Code, making it a separate crime against the administration of justice to breach bail conditions. Unlike bail revocation, a criminal charge under s. 145(3) is backward-looking — it exists to punish and deter those who knowingly or recklessly violate their bail conditions.

[70] This legislative framework indicates that Parliament intended for the Crown to primarily use bail review and revocation, rather than criminal charges, as the first line of response to bail breaches. Section 145(3) is a means of last resort.

[71] Even with new processes for bail variation or revocation, a bail variation or revocation application should be among the responses seriously considered by the Crown when faced with non-compliance with bail conditions before a charge under s. 145(3) is laid.

[72] Given this, the primary purpose of s. 145(3) is not to manage future risk, but to sanction past behaviour and deter further breaches. As noted, specific deterrence has little or no effect if an accused does not know they were doing anything wrong.

(3) Setting Bail Conditions and Their Breach Under Section 145(3)

[73] There is a strong, indeed inexorable, connection between the setting of bail conditions and the operation of s. 145(3), including its mens rea. The fault element for a crime against the administration of justice necessarily implicates the system that creates the obligations the breach of which constitutes the offence.

[74] The respondent and the intervener Attorney General of British Columbia ("AGBC") submit that the mens rea for s. 145(3) can be satisfied on proof that the accused was aware of the standard of conduct required by the bail condition and chose a manner of conduct that involved a risk of non-compliance that was a marked departure from the standard expected of a reasonable person in those circumstances.

[75] I do not accept this line of reasoning. This proposition is premised on a false dichotomy which assumes that a focus on the individual accused must lead to an objective rather than a subjective fault standard.

[76] I would also reject the position put forward by the AGBC because of the prevalence of bail conditions that fail to reflect the requirements for setting bail. In practice, bail orders contain numerous conditions that do not meet the necessary, reasonable, and least onerous criteria.

[77] Several factors contribute to the imposition of numerous and onerous bail conditions. Courts and commentators have consistently described a culture of risk aversion among all participants in the bail process. This culture of risk aversion contributes to courts applying excessive bail conditions when accused persons are released.

[78] The expeditious nature of bail hearings also generates a culture of consent, which aggravates the lack of restraint in imposing excessive bail conditions and encourages accused persons to agree to onerous terms of release rather than risk detention.

[79] A third reality of bail is that onerous conditions disproportionately impact vulnerable and marginalized populations. Those living in poverty or with addictions or mental illnesses, and Indigenous people, bear the greatest burden of excessive bail conditions.

Canadian bail courts regularly impose abstinence requirements on those addicted to alcohol or drugs, residency conditions on the homeless, strict check-in requirements in difficult to access locations, and geographic conditions that cut off accused persons from communities of support.

[80] The presence of too many unnecessary conditions and the prevalence of breach charges resulting from the imposition of excessive and onerous conditions is part of the relevant legislative context for finding no clear intention of Parliament to displace the presumed subjective fault standard for s. 145(3).

V. Restraint and Review: Necessary and Reasonable Bail Conditions and Section 145(3)

[81] In Antic, this Court set out the proper approach to the Code's bail provisions when it addressed the overuse of cash bail and sureties. As issues concerning bail are particularly evasive of appellate review due to their transient nature, this Court took the opportunity to provide guidance that would promote compliance with the Code's scheme going forward. I will do the same here.

[82] We can learn a great deal about how to set bail conditions upon seeing how they become criminal offences under s. 145(3). Each condition added onto a release order not only limits the freedom of a person presumed innocent, it also creates a new source of potential criminal liability for that individual.

A. General Principles Governing Bail Conditions

[83] All those involved in setting bail terms must turn their minds to the general principles for setting bail, which restrain how bail conditions are set. As the default position in the Code is bail without conditions, conditions may only be imposed if they are necessary to address risks identified in s. 515(10).

[84] Only conditions which target those specific s. 515(10) risk(s) are necessary. If an accused is a flight risk, but poses no other risks, only those conditions that minimize their risk of absconding may be imposed. The statutory risks must be assessed before any conditions are imposed.

[85] The requirement of necessity also means that the particular condition must attenuate risks that would otherwise prevent the accused's release without that condition. Conditions cannot be imposed for gratuitous or punitive purposes and should not be behaviourally-based.

Terms of release imposed under s. 515(4) may "only be imposed to the extent that they are necessary" to address concerns related to the statutory criteria for detention and to ensure that the accused attends court (Antic, at para. 67).

[86] Moreover, bail conditions must be sufficiently linked to the defined statutory risks. They should be as narrowly defined as possible to meet their objective of addressing the risks under s. 515(10). As the Ontario Court of Appeal observed:

Where the condition is not demonstrably connected to the alleged fear, it may merely set the defendant up for breach . . . Any condition should not be so onerous as effectively to constitute a detention order (Badgerow, at para. 42).

[87] A bail condition must be reasonable. As with probation conditions, bail conditions cannot contravene federal or provincial legislation or the Charter (Shoker, at para. 14). The enumerated bail conditions may provide helpful guidance, but non-enumerated conditions must be scrutinized with care.

[88] Bail conditions are to be tailored to the individual risks posed by the accused. There should not be a list of conditions inserted by rote. The only bail condition that should be routinely added for all accused is the obligation to appear in court as required.

[89] In summary, to ensure the principles of restraint and review are firmly grounded in how people think about appropriate bail conditions, these questions may help structure the analysis:

• If released without conditions, would the accused pose any specific statutory risks that justify imposing any bail conditions? If the accused is released without conditions, are they at risk of failing to appear in court, of harming public protection and safety, or of undermining confidence in the administration of justice?

• Is this condition necessary? If this condition was not imposed, would that create a risk of the accused absconding, harm to public protection and safety, or loss of confidence in the administration of justice?

• Is this condition reasonable? Is the condition clear and proportional to the risk posed by the accused? Can the accused be expected to meet this condition safely and reasonably? Based on what is known about the accused's personal circumstances, is this condition realistic and attainable?

• Is this condition sufficiently linked to the grounds of detention under s. 515(10)(c)? Is it narrowly focussed on addressing that specific risk posed by the accused's release?

• What is the cumulative effect of all the conditions? Taken together, are they the fewest and least onerous conditions required in the circumstances?

[90] When considering the appropriateness of bail conditions, the criminal offence created by s. 145(3) not only counsels restraint and review, but provides an additional frame of reference which informs how appropriate conditions are set and enforced.

B. Specific Conditions

[91] I now address some specific non-enumerated conditions commonly included in release orders. Many of these types of conditions were in Mr. Zora's release order. The criminalization of their breach under s. 145(3) reflects the need for care in their imposition.

[92] First, judicial officials should be wary of conditions that may be directed to symptoms of mental illness. This includes alcohol and drug abstinence conditions for an accused with an alcohol or drug addiction, or curfew and residency conditions for an accused with no fixed address.

[93] Second, other behavioural conditions that are intended to rehabilitate or help an accused person will not be appropriate unless the conditions are necessary to address the risks posed by the accused in relation to the statutory grounds in s. 515(10).

[94] Third, the condition to "keep the peace and be of good behaviour" is a required condition in probation orders, conditional sentence orders, and peace bonds, but is not a required condition for bail orders.

[95] Fourth, broad conditions requiring an accused to follow or be amenable to the rules of the house or follow the lawful instructions of staff at a residence may be problematic, especially for accused persons in shelters or transitional housing.

[96] Fifth, certain conditions may cause perverse consequences or unintended negative impacts on the safety of the accused or the public. These unintended effects underscore the need for careful and individualized consideration of any proposed bail condition.

[97] Further examples of conditions with perverse consequences include "red zone" conditions which prevent an accused from entering a certain geographical area and "no drug paraphernalia" conditions that may inadvertently make it more dangerous for an accused with drug dependencies to consume drugs, as they may be forced to share needles.

[98] Finally, I note that some bail conditions may impact additional Charter rights of the accused, beyond their right to be presumed innocent, liberty rights (s. 7), and right to reasonable bail (s. 11(e)). These rights should be carefully considered before any such conditions are imposed.

[99] Other conditions can also affect an accused's freedom of expression or freedom of association. These effects on additional Charter rights must be considered when evaluating whether a particular condition is necessary, reasonable, and sufficiently linked to the statutory risks.

C. Responsibilities

[100] All persons involved in the bail system are required to act with restraint and to carefully review what bail conditions they either propose or impose. Restraint is required by law, is at the core of our bail system, and is a matter of professional responsibility.

[101] All participants in the bail system also have a duty to uphold the presumption of innocence and the right to reasonable bail. This is because the "cardinal rule" of criminal justice is that persons are to be presumed innocent until proven guilty.

[102] Ultimately, the obligation to ensure that accused persons are released on appropriate bail orders lies with the judicial official. As with the setting of cash deposits in Antic, if a judicial official is presented with a consent release order containing inappropriate conditions, they have the discretion and the obligation to reject it and to impose conditions that comply with the requirements of the Code.

[103] Judicial officials have adequate tools to ensure that bail orders are generally appropriate while conserving judicial resources. They can and should question conditions that seem unusual or excessive, even in a consent bail hearing.

[104] These obligations carry over to consent releases, where special considerations apply. There are many compelling reasons a person in custody would "accept" suggested restrictions to secure release. A person in custody may well be inclined to accept bail conditions — even unreasonable ones — to secure release.

[105] The ladder principle and the rigorous assessment of bail conditions will be more strictly applicable when bail is contested, but joint proposals must still be premised on the criteria for bail that is necessary, reasonable, and least onerous:

Too often, as is evident from some transcripts of show cause hearings coming before this court, counsel conduct themselves as though a "consent" bail governs the release/detention result with all that that implies. It does not. Regardless of whether the outcome is contested or consented to, the governing criteria for both the release decision and for the conditions of release remain the same and must be respected (Badgerow, at para. 43).

[106] Although bail courts are busy places, where consent releases can encourage efficiency, little efficiency is achieved if an accused person is released on conditions by which they cannot abide, and then is subject to further criminal charges when they inevitably breach those conditions.

D. Conclusion on How Section 145(3) Informs the Imposition of Bail Conditions

[107] In conclusion, the s. 145(3) offence requires subjective mens rea. Not only is this conclusion consistent with the presumption of subjective fault for crimes like s. 145(3), it is supported by the text and context of the offence, as well as the statutory scheme within which s. 145(3) operates. The setting of bail conditions must be done with restraint and care, and the threat of criminal sanctions under s. 145(3) is meant only to deter those who knowingly or recklessly flout the individualized conditions of their bail orders.

VI. Components of Subjective Mens Rea for Section 145(3)

[108] Having concluded that subjective mens rea is required for the failure to comply offence, I now describe what the Crown must establish to prove the subjective mens rea for s. 145(3).

[109] Subjective mens rea generally must be proven with respect to all circumstances and consequences that form part of the actus reus of the offence. Under s. 145(3), the Crown must prove two things:

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;

   OR

   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 they proceeded despite that risk.

[110] These elements accord with the mens rea required in jurisdictions recognizing a subjective mens rea for failure to comply offences by requiring that the Crown show beyond a reasonable doubt that the accused knowingly or recklessly breached their bail conditions.

[111] However, the jurisprudence divides somewhat on the first element: the extent to which the accused must know the terms of their bail conditions, and therefore know that they are breaching a condition. Some courts have held that actual knowledge of the bail conditions is not necessary and that it is sufficient for the Crown to prove the accused knew they were subject to a bail order.

[112] I prefer the alternative approach. An accused must know or be wilfully blind to their conditions in order to be convicted, although the accused does not need to know the legal consequences or the classification of the offence.

[113] Wilful blindness is a substitute for the accused's knowledge of the facts whenever knowledge is a component of mens rea and where the accused is deliberately ignorant (R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, at para. 21). Wilful blindness as to bail conditions would be established where, for example, an accused person deliberately avoids reading or having read to them the conditions of their bail order.

[114] Requiring that an accused person has knowledge of, or is wilfully blind to, their conditions of bail does not mean that the accused must have knowledge of the law, which would be contrary to the principle that ignorance of the law is no excuse. Rather, the accused must know the factual content of their bail conditions.

[115] The conclusion that an accused must have knowledge of their conditions of bail, or be wilfully blind to their conditions, in order to have the requisite mens rea under s. 145(3), also accords with the practice of reading out and explaining bail conditions to accused persons and having them acknowledge the conditions they must follow.

[116] The second component of the mens rea for s. 145(3) can be met by showing that the accused acted knowingly or recklessly in breaching their condition. Knowledge in this second component means that the accused knew of the circumstances requiring them to comply with the conditions of their order.

[117] This second component can also be met by showing that the accused was reckless. Where a higher requirement of "wilfulness" or "intent" is not indicated by the text or nature of an offence, the minimum standard for subjective fault is recklessness.

[118] Given that s. 145(3) can operate to criminalize otherwise lawful day-to-day behaviour, the accused must perceive a substantial and unjustified risk that their conduct would fail to comply with their bail conditions, not simply any risk of non-compliance.

[119] Requiring this standard of risk for recklessness is warranted because the offence may criminalize everyday activities and have unforeseen consequences on people's everyday lives. For example, someone subject to a curfew condition, but who must stay late at work due to an emergency, would be reckless only if they perceived a substantial and unjustified risk that staying at work would breach their curfew and decided to do so anyway.

[120] Finally, I do not accept that a subjective fault requirement would make it too difficult for the Crown to prove an accused's knowing or reckless failure to comply with bail conditions. If the Crown can establish beyond a reasonable doubt that the accused was aware of their conditions and had no legitimate explanation for the breach, it will ordinarily be open to the trier of fact to infer that the accused deliberately chose to breach a condition, or perceived the risk of breaching it and proceeded anyway.

[121] The Crown's concern that accused persons may simply say they forgot about their bail conditions to escape criminal liability for breaching their bail is addressed because judges "will no doubt assess those assertions with care and in light of all the circumstances, including the duration of the terms, how often the person was reminded of the terms, and so on."

[122] In conclusion, as accepted by the respondent and the AGBC, "[t]he sky will not fall if the Crown has to prove a mental element" (Loutitt, at para. 17). A subjective mens rea requirement appropriately reflects the moral culpability that underpins criminal sanctions.

VII. A New Trial Should Be Ordered

[123] I agree with Mr. Zora that a new trial should be ordered in light of the error in law by the courts below in applying an objective rather than a subjective standard of fault for s. 145(3).

[124] This is not a case where the curative proviso allows this Court to dismiss an appeal under s. 686(1)(b)(iii) because there was "no substantial wrong or miscarriage of justice" despite an error of law. The error was not minor or peripheral to the outcome — the courts below applied the wrong standard of fault throughout the analysis.

[125] The evidence is also not so overwhelming that a conviction is inevitable. As the trial judge was focussed on what a reasonable person would do in the circumstances, he did not need to make clear findings of fact about Mr. Zora's actual knowledge of whether his conduct failed to comply with his bail conditions.

[126] The trial judge's negative statements concerning the credibility of the defence witnesses mean that an acquittal would also not be appropriate. A new trial is needed to address whether Mr. Zora knowingly or recklessly failed to attend at his door.

VIII. Conclusion

[127] Therefore, subjective fault is required for a conviction under s. 145(3) of the Code. I would allow this appeal, quash Mr. Zora's convictions, and order a new trial on the two counts of failing to attend at his door.

Appeal allowed.

Solicitors

Solicitors for the appellant: Marion & Runyon, Criminal Lawyers, Campbell River; Michael Sobkin, Ottawa.

Solicitor for the respondent: Public Prosecution Service of Canada, Vancouver.

Solicitor for the intervener the Attorney General of Ontario: Attorney General of Ontario, Toronto.

Solicitor for the intervener the Attorney General of British Columbia: Attorney General of British Columbia, Vancouver.

Solicitors for the intervener the Criminal Lawyers' Association of Ontario: Henein Hutchison, Toronto.

Solicitors for the intervener the Vancouver Area Network of Drug Users: Gratl & Company, Vancouver.

Solicitors for the intervener the British Columbia Civil Liberties Association: Blake, Cassels & Graydon, Vancouver.

Solicitors for the intervener the Canadian Civil Liberties Association: Paliare Roland Rosenberg Rothstein, Toronto.

Solicitors for the intervener the Independent Criminal Defence Advocacy Society: Peck and Company, Vancouver.

Solicitors for the intervener the Pivot Legal Society: David N. Fai, Law Corporation, North Vancouver; Pivot Legal Society, Vancouver.

Solicitors for the intervener Association québécoise des avocats et avocates de la défense: Desrosiers, Joncas, Nouraie, Massicotte, Montréal.