COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Zora,

2019 BCCA 9

Date: 20190110

Docket: CA44946

Between:

Regina

Respondent

And

Chaycen Michael
Zora

Appellant

Before:

The Honourable Madam Justice Stromberg-Stein

The Honourable Mr. Justice Willcock

The Honourable Mr. Justice Savage

The Honourable Madam Justice Fenlon

The Honourable Madam Justice Fisher

On appeal from:  An
order of the Supreme Court of British Columbia, dated November 15, 2017 (
R.
v. Zora
, 2017 BCSC 2070 Courtenay Docket No. 38980).

Counsel for the Appellant:

S. Runyon

G. Barriere

Counsel for the Respondent:

R.J. Carrier

Place and Date of Hearing:

Vancouver, British
  Columbia

September 4, 2018

Place and Date of Judgment:

Vancouver, British
  Columbia

January 10, 2019

Written Reasons by:

The Honourable Madam Justice Stromberg-Stein

Concurred in by:

The Honourable Mr. Justice Willcock

The Honourable Mr. Justice Savage

The Honourable Madam Justice Fisher

Reasons Concurring in the Result by:

The Honourable Madam Justice Fenlon (page 21, para. 70)

Summary:

Appeal from convictions for
breaching a recognizance by failing to present self at door for curfew
compliance checks. The sole issue is whether s. 145(3) of the Criminal
Code imports an objective standard of mens rea. Held: appeal dismissed. Stromberg-Stein,
Willcock, Savage, Fisher JJ.A.: The duty-based nature of s. 145(3),
combined with the risk-based nature of bail provisions, support Parliaments
intention for the application of an objective fault standard having regard to
the plain language, breadth, context and purpose of the offence. Fenlon J.A.: There
is no basis in the context or language of s. 145(3) to displace the
presumption of subjective intent. To prove the mental element of breach of a
bail condition, the Crown must prove that the accused person knew their conduct
would infringe a condition of release, was reckless, or was wilfully blind. However,
the uncontested facts establish that Mr. Zora was reckless.

Reasons for Judgment of the Honourable
Madam Justice Stromberg-Stein:

Overview

[1]

Chaycen Michael Zora appeals his convictions for breaching his
recognizance by failing to present himself at his door for two curfew
compliance checks contrary to s. 145(3) of the
Criminal Code
,
R.S.C., 1985, c. C-46. The sole issue is whether s. 145(3) imports an
objective standard of
mens rea.

[2]

In my view, the duty-based nature of s. 145(3), combined with the
risk-based nature of bail provisions, support Parliaments intention for the
application of an objective fault standard. This is consistent with the plain
language, context and purpose of the offence. An objective fault standard
requires proof of a marked departure from what a reasonable person in the same
situation would do. If there is a reasonable doubt that a reasonably prudent
person would not have foreseen or appreciated the risk or could have done
something to prevent the breach, an acquittal must follow. This is sufficient
to ensure only the morally blameworthy will be convicted.

Facts

[3]

Mr. Zora was charged with a number of drug offences contrary to the
Controlled Drugs and Substances Act
, S.C. 1996, c. 19. He was
released on a recognizance with one surety. His release was conditional on
obeying a curfew and presenting himself at his front door within five minutes
of a police officer or bail supervisor attending to confirm his compliance with
these conditions.

[4]

On October 9, 2015, Friday of the Thanksgiving long weekend, a police
officer went to Mr. Zoras residence at 10:30 p.m., two-and-a-half hours
after the commencement of his curfew. The officer rang the doorbell three times
and knocked loudly on the front door with his fist. There was no response. He
waited for more than five minutes. There was no activity at the residence, no
lights were on, and he heard no dogs barking.

[5]

On October 11, 2015, another police officer went to Mr. Zoras
residence. He saw a sign on the door that read use the doorbell, which he
did. He waited for more than five minutes and observed no activity at the
residence.

[6]

Both officers had previously attended at the residence for similar
checks and Mr. Zora responded appropriately. They denied there was a
hand-made sign that read: I am home cant always hear you knock or door bell
so please try all doors in garage if no answer at front door Thanks Chaycen
Zora.

[7]

With respect to the October 9 and 11 police attendances, Mr. Zora
was charged with two counts of breaching his curfew and two counts of failing
to comply with the condition that he present himself at the door. Mr. Zora
was informed of these charges around October 27, 2015.

[8]

Mr. Zora, his mother, and his girlfriend testified that they were
at the residence over the Thanksgiving weekend and celebrated Thanksgiving
together on October 11, 2015. They confirmed that two dogs were usually at the
residence and would bark when someone rang the doorbell or approached the
residence.

[9]

Mr. Zora explained that he may have been sleeping during the two
police checks. He said it was difficult, if not impossible, to hear the
doorbell from where he slept. He was undergoing methadone treatment and
withdrawal from his heroin addiction, which made him sleepy, so he often went
to bed earlier than usual.

[10]

After learning of the breaches, Mr. Zora set up an audio-visual
system to help alert him to future police checks and he changed where he slept
in his residence. He had no further problems complying with his bail
conditions.

Provincial Court

[11]

The trial judge found no credibility issues with the evidence of the
police witnesses, but he found credibility and reliability issues with respect
to the evidence of Mr. Zora and his witnesses.

[12]

The judge likened compliance with the bail conditions to strict
liability offences but effectively applied a standard of objective
mens rea
.
He suggested it is not a defence to the charges to not answer the door because
the accused person did not hear the doorbell, was passed out after drinking, or
did not want to answer. The judge concluded that an accused person who wants
the benefit of being released on bail ought to arrange their life in such a way
as to comply with all bail conditions. He observed this was reflected in the
additional steps Mr. Zora took after he breached his bail conditions.

[13]

The judge acquitted Mr. Zora of the curfew violations on the basis
that the circumstantial evidence of non-compliance was inconclusive because
there was no direct evidence Mr. Zora was outside his residence during the
compliance checks. However, the judge concluded that although Mr. Zora had
provided a possible explanation for not appearing at the door, it was not a
legal defence. He found Mr. Zora guilty of two breaches for failing to
appear at the door for curfew compliance checks and sentenced him to pay fines
of $400 for each breach.

Summary Conviction Appeal

[14]

Mr. Zora appealed his convictions arguing the trial judge erred in
law by applying the wrong standard of fault to s. 145(3) of the
Criminal
Code
. He did not challenge the judges factual findings.

[15]

The summary conviction appeal judge noted divergent authorities on the
issue of
mens rea
for s. 145(3) but ultimately concluded he was
bound by
R. v. Ludlow
, 1999 BCCA 365. He stated:

[
3
]        The subsection is not clear as to
what
mens rea
is required for a conviction. There is a line of cases,
led by
R. v. Legere
(1995),
95 C.C.C. (3d) 89 (Ont. C.A.)
, holding that s. 145(3)
charges a true criminal offence and failure to take steps that a reasonable
person would take to ensure that they are in a position to comply with the
recognizance will not support a conviction. However, in
R. v. Ludlow
(1999),
136 C.C.C. (3d) 460
(B.C.C.A.)
, Hall J.A., writing for himself and Cumming J.A., thoroughly
considered the question and expressed the opinion, albeit in
obiter
,
that the
mens rea
requirement is largely objective. Esson J.A.
dissented, but not on this point.

[5]        The appellant argues that the trial judge erred in
law in applying the approach set out in
Ludlow
. The appellant did not
put his case on the basis that the
Ludlow
holding was
obiter
.
Rather, he argues that
Ludlow
ought not to be followed because:

(1)

In
Ludlow
the Court of Appeal did not refer to
R. v. Docherty
,
[1989] 2 S.C.R. 941, which held that a similar
Code
provision (now
733.1(1)) dealing with non-compliance with probation orders constitutes a full
mens
rea
offence;

(2)

Jurisprudence on s. 733.1(1) since
Ludlow
continues to cast
doubt on the
Ludlow
reasoning;

(3)

There is ambiguity in the wording of s. 145(3) as evidenced by the
various cases that interpret the
mens rea
requirement differently, and
in these circumstances the principles of statutory interpretation obliged the
trial judge to give the benefit of the doubt to the accused.

[16]

The judge concluded
Ludlow
should be followed unless reconsidered
or overturned by this Court.

Leave to Appeal to the Court of Appeal

[17]

Mr. Zora applied for leave to appeal pursuant to s. 839(1) of
the
Criminal Code
. On March 9, 2018, a division of this Court granted
leave to appeal on the question of whether the summary conviction appeal judge
erred in finding s. 145(3) of the
Criminal Code
imports an
objective standard of
mens rea
and ordered that a five-member division
hear the appeal.

Positions of the Parties

[18]

The parties agree that s. 145(3) is a truly criminal offence and
not a strict liability offence.

[19]

Mr. Zora submits there is a presumption of subjective
mens rea
for true crimes and nothing in the wording of s. 145(3) supports the
application of an objective fault standard for the following reasons:

1.

The
presence of a defence of lawful excuse has no impact on the
mens rea
analysis,
as defences are distinct and separate from the elements of the offence;

2.

Section
145(3) does not fit into any of the five types of objective
mens rea
offences identified in
R. v. A.D.H.
, 2013 SCC 28, which are dependent on
a breach of a community standard of conduct that is not present in this case;

3.

The
individualized nature of bail conditions favours subjective
mens rea
and
protects those with mental or physical challenges;

4.

The
consequences of a conviction, including both the penalty and the requirement to
justify release in the future, suggest a subjective standard of fault; and

5.

Section
733.1, a probation provision similar to s. 145(3), has been interpreted by
the Supreme Court of Canada as requiring subjective
mens rea
.

[20]

The Crown acknowledges there is a statutory presumption of subjective
mens
rea
but submits the presumption is rebutted for the following reasons:

1.

Section 145(3) is a duty-based offence similar to s. 215 (failure
to provide the necessities of life) as indicated by the plain language of the
section;

2.

The availability of a defence of lawful excuse;

3.

The purpose of the section is to ensure those released from custody do
not cause any of the dangers set out in s. 515(10) of the
Criminal Code
;

4.

The purpose of the section is to hold an accused person accountable when
they do not abide by their conditions of release;

5.

An objective standard ensures an accused person is held to a minimum
community standard rather than setting an individual standard;

6.

The customization of the bail conditions takes into account an accused
persons circumstances; and

7.

Section 145(3) is not analogous to s. 733.1 due to its different
language, consequences, and purpose.

Analysis

[21]

Section 145(3) requires a two-stage analysis. A person commits an
offence when they:

1.

are subject to an undertaking, direction, or recognizance and breach its
conditions by committing an act or omission (
actus reus
); and have the
requisite fault element (
mens rea
); and

2.

fail to provide a lawful excuse for the breach.

[22]

The second stage of the analysis arises only after the Crown proves all
the required elements at the first stage.

[23]

The section is silent as to the requisite
mens rea
. Three
appellate courts (and numerous lower courts) have commented on the
mens rea
required for ss. 145(2) and (3). These sections have been viewed as
attracting the same fault element, but whether the fault element is subjective
or objective has led to inconsistent answers in the case authorities.

[24]

In
R. v. Legere
(1995), 22 O.R. (3d) 89 (C.A.), Mr. Legere
was released on the condition that he carry his bail papers with him and not
communicate with any person under the age of 16. Soon after his release, two
police officers observed him near two young boys and arrested him. He did not
have his bail papers with him. The trial judge found Mr. Legere had not
taken proper or reasonable precautions to ensure he had his papers with him
and convicted him for breaching that condition:
Legere
at 95.

[25]

The Ontario Court of Appeal held that the judge erred in finding Mr. Legere
guilty on the basis that he was negligent (at 100):

The evidence in the present case
does not support a finding that the appellant knowingly or recklessly failed to
carry his bail papers or that he intentionally disposed of them. Accordingly, I
would set aside the appellants conviction on the charge of failing to carry
and produce his bail papers on request of the police, and enter an acquittal.

[26]

The Court applied a subjective
mens rea
requirement, which the
Crown had conceded was the correct standard of fault.

[27]

This Court decided
Ludlow
in 1999. Mr. Ludlow was accused of
domestic violence. He was released on condition that he appear in court on a
certain date for trial. Mr. Ludlows partner, the alleged victim, decided
she did not want to proceed with her complaint and told Mr. Ludlow she had
contacted the police and the matter was dropped. Mr. Ludlow understood
this to mean that he no longer was required to attend court so he did not appear
for trial. He was charged with failing to appear contrary to s. 145(2) of
the
Criminal Code
.

[28]

At trial, Mr. Ludlow admitted he failed to appear and the focus was
on whether he had a lawful excuse. The trial judge did not address the issue of
mens rea
and convicted Mr. Ludlow on the basis that he did not
exercise due diligence in confirming that he was no longer required to appear:
Ludlow
at para. 16.

[29]

Mr. Ludlows summary conviction appeal was dismissed on the basis
that Mr. Ludlows failure to confirm whether his court date was cancelled
was unreasonable: at para. 17.

[30]

In the Court of Appeal, Mr. Ludlow argued the offence of failing to
appear was a true
mens rea
offence and the summary conviction appeal
judge erred in upholding his conviction on the basis of lack of due diligence
or the application of an objective test: at para. 18.

[31]

Mr. Justice Hall, writing for the majority, framed the question on
appeal as whether Mr. Ludlow had a lawful excuse for not appearing or,
more directly, whether he honestly and reasonably believed, based on the
information from his partner, that the case would not proceed: at paras. 28-29.

[32]

Hall J.A. noted that ss. 145(2) and (3) had language that was for
all practical purposes indistinguishable (at para. 31) and stated:

[30]      As I interpret
Code
section 145(2), it provides that when the Crown establishes non-attendance by
an accused contrary to an undertaking or recognizance, the accused should be
found guilty unless he can point to some evidentiary basis supportive of a
lawful excuse for his failure to appear. The section speaks of the proof of
which lies upon him.

[33]

He considered
Legere
and suggested the authority of earlier cases
that concluded negligent conduct was not a permissible basis for conviction
had been shaken by the trend of authorities in the Supreme Court of Canada and
this court in the past decade: at para. 34. He referred to
R. v.
Hundal
,

[1993] 1 S.C.R. 867;
R. v. Finlay
, [1993] 3 S.C.R.
103; and
R. v. Creighton
,

[1993] 3 S.C.R. 3, to demonstrate that
objective
mens rea
offences based on negligent conduct are
constitutionally permissible as long as exculpatory defences are available. He
cited comments of McLachlin J. (as she then was) in
Creighton
with
respect to objective
mens rea
:

[35] In
R. v. Creighton
, [1993] 3 S.C.R. 3
(S.C.C.) at
58, 83 C.C.C. (3d) 346 (S.C.C.) at 382, McLachlin J. observed in upholding the
constitutionality of unlawful act manslaughter observed as follows:

Objective
mens rea
, on the
other hand, is not concerned with what the accused intended or knew. Rather,
the mental fault lies in failure to direct the mind to a risk which the
reasonable person would have appreciated.
Objective
mens rea
is not
concerned with what was actually in the accused's mind, but with what should
have been there, had the accused proceeded reasonably.

It is now established that a person
may be held criminally responsible for negligent conduct on the objective test,
and that this alone does not violate the principle of fundamental justice that
the moral fault of the accused must be commensurate with the gravity of the
offence and its penalty:
R. v. Hundal
, [1993] 1 S.C.R. 867.

[Emphasis in original].

[34]

Hall J.A. concluded:

[
39
]      It seems to me that it would be
impossible to envisage every situation that could amount to a lawful excuse for
failure to attend court. Sudden illness, a breakdown of transport and the like
would seem to be clear instances of situations that could amount to a lawful
excuse for failure to appear. Of course, any such defence would have to be
based on evidence that the trier of fact believed.

[
40
]
It must not be overlooked that
an obligation is imposed by statute on a person bound by an undertaking or
recognizance to attend at court as required or directed by the terms of the
operative document.
Forgetting to appear seems to me a very marked
departure from the requirement imposed on an accused at liberty on an
undertaking or recognizance to faithfully observe the requirement to attend.
Most
people would and should recognize that a serious obligation concerning the
proper administration of justice is thereby imposed on an accused
and a
failure to attend, absent a compelling reason, or as in the instant case, an
honest and reasonably based belief that no attendance is required, should
usually result in a finding of a breach of the section.
I would say the
fault or
mens rea
requirement for this class of offence has a large
element of the objective about it. Conviction can be avoided if an accused
establishes a lawful excuse by a showing of due diligence to satisfy the
obligation, including an honest and reasonable belief in a state of facts that
would excuse non-attendance.

[Emphasis added].

[35]

Hall J.A. found Mr. Ludlow established a lawful excuse for not
appearing in court: a defence of mistake of fact that the proceedings had been
discontinued. Thus, his comments regarding the
mens rea
of the offence
could be considered
obiter
.

[36]

Mr. Justice Esson, dissenting on the legal application to the facts
but not on the law, agreed with Hall J.A. that the fault element had a large
element of objective about it and [c]onviction can be avoided if an accused
establishes lawful excuse by a showing of due diligence to satisfy the
obligation, including an honest and reasonable belief in a state of facts that
would excuse non-attendance: at para. 45.

[37]

R. v. Custance
, 2005 MBCA 23, addressed the standard of fault for
s. 145(3). Mr. Custance was released on conditions that he reside
with his sponsor, maintain a curfew, and present himself for curfew checks: at para. 3.
He discovered that his sponsor did not yet have keys to the apartment. Mr. Custance
knew if he did not get into the apartment he would be in breach of his
conditions. Instead of turning himself in, he elected to stay in his car in the
parking lot for several days. When the police realized Mr. Custance was
not at the apartment, he was arrested, charged, and convicted for breaching his
conditions: at paras. 5-6.

[38]

On appeal, Mr. Custance argued that the trial judge did not
properly consider the
mens rea
element of the offence. The Manitoba
Court of Appeal described the elements of the offence as follows (at para. 10):

(1)     that the
Crown must prove that the accused was bound by an undertaking or recognizance;

(2)     that the
accused committed an act which was prohibited by that undertaking or
recognizance or that the accused failed to perform an act required to be
performed by that undertaking or recognizance; and

(3)     that the accused had the appropriate
mens
rea
, which is to say that the accused knowingly and voluntarily performed
or failed to perform the act or omission which constitutes the
actus reus
of the offence.

[39]

Relying on the commentary of Gary T. Trotter in his text
The Law of
Bail in Canada
, 2d ed. (Scarborough, Ont: Carswell, 1999), the Court stated
that the Crown need not prove that Mr. Custance intended to breach his
recognizance but must prove he intended to commit the
actus reus
. While
recklessness was sufficient, mere carelessness or negligence was not:
Custance
at para. 12.

[40]

The Court held the test for
mens rea
was primarily subjective
and required the Court to look at the facts as the accused believed them to
be: at para. 13. Mr. Custance knew about his conditions and knew
that failing to reside at the apartment would breach the conditions. The
question was whether his mistaken belief that he could comply with the
recognizance by staying in his car was sufficient to exculpate him. The Court
concluded Mr. Custance made a mistake of law rather than a mistake of fact
and upheld the conviction. The Court noted that generally lawful excuses would
entail circumstances in which compliance is virtually impossible, such as
severe illness, but added that, based on
Ludlow
, due diligence could
potentially constitute a lawful excuse: at paras. 25-26.

[41]

In addition to the three appellate cases, many courts have commented on
the requisite
mens rea
for ss. 145(2) and (3) offences. The
inconsistent decisions with respect to s. 145 offences are summarized in
R.
v. Loutitt
, 2011 ABQB 545, by Mr. Justice A.W. Germain:

[13]      A number of other judgments interpret the
mens
rea
requirement for s. 145(5) and related offenses [subjectively]:

·

Criminal Code
, s. 145(1):
R. v. Manuel
(2000),
182 N.S.R. (2d) 193 (N.S. S.C.) at para. 12, (2000), 74 C.R.R. (2d) 75
(N.S. S.C.);

·

Criminal Code
, s. 145(2):
R. v. Blazevic
(1997), 31 O.T.C. 10, 34 W.C.B. (2d) 282 (Ont. Gen. Div.);
R. v. Mullin
,
2003 YKTC 26 (Y.T. Terr. Ct.) at para. 22, (2003), 13 C.R. (6th) 54 (Y.T.
Terr. Ct.);

·

Criminal Code
, s. 145(3):
R. v. Custance
, 2005
MBCA 23 (Man. C.A.) at para. 13, (2005), 192 Man. R. (2d) 69 (Man. C.A.),
leave refused [2005] S.C.C.A. No. 156 (S.C.C.);
R. v. Legere
(1995), 22 O.R. (3d) 89, 77 O.A.C. 265 (Ont. C.A.);
R. v. Smith
, [2005]
O.J. No. 1316 (Ont. S.C.J.) at para. 10, 64 W.C.B. (2d) 651 (Ont.
S.C.J.)), reversed on other grounds 2008 ONCA 101, 233 O.A.C. 145 (Ont. C.A.);

·

Criminal Code
, s. 145(5) (and its pre-1985 equivalent
s. 133(5)):
R. v. Bender
(1976), 30 C.C.C. (2d) 496 (B.C. S.C.);
R.
v. Hutchinson
(1994), 160 A.R. 58, 25 W.C.B. (2d) 51 (Alta. Prov. Ct.);
R.
v. Nedlin
, 2005 NWTTC 11 (N.W.T. Terr. Ct.) at para. 43, (2005), 32
C.R. (6th) 361 (N.W.T. Terr. Ct.);
R. v. Stuart
(1981), 58 C.C.C. (2d)
203, 5 W.C.B. 506 (B.C. S.C.);
R. v. Blazevic
(1997), 31 O.T.C. 10, 34
W.C.B. (2d) 282 (Ont. Gen. Div.);
R. v. Hurlbert
, 2003 ABPC 54 (Alta.
Prov. Ct.) at para. 14, (2003), 340 A.R. 192 (Alta. Prov. Ct.);
R. v.
Weishar
, [2003] O.T.C. 719, 13 C.R. (6th) 59 (Ont. S.C.J.);
R. v.
Fitzgerald
(1995), 129 Nfld. & P.E.I.R. 174, 27 W.C.B. (2d) 82 (Nfld.
T.D.);
R. v. Josephie
at para. 30;

·

Criminal Code
, s. 145(5.1):
R. v. Brown
, 2008
ABPC 128 (Alta. Prov. Ct.) at para. 30, (2008), 445 A.R. 211 (Alta. Prov.
Ct.); and

·

Criminal Code
, s. 733.1(1):
R. v. Stanny
, 2004
ABPC 149 (Alta. Prov. Ct.) at paras. 26-28;
R. v. Eby
.

[14]      A separate set of cases has taken a more strict
approach and conclude that negligence or the absence of 'due diligence' is a
basis on which a court can convict:

·

Criminal Code
, s. 145(2):
R. v. Ludlow
, 1999
BCCA 365 (B.C. C.A.) at paras. 37-38, (1999), 136 C.C.C. (3d) 460 (B.C.
C.A.);
R. v. Osmond
, 2006 NSPC 52
(N.S.
Prov. Ct.) at para. 40, (2006), 248 N.S.R. (2d) 221 (N.S. Prov. Ct.);
R.
v. Parent-Quinn
, [1995] O.J. No. 4668
(Ont. Prov. Div.);

·

Criminal Code
, s. 145(5) (and its pre-1985 equivalent
s. 133(5)):
R. v. Preshaw
(1976), 31 C.C.C. (2d) 456, 35 C.R.N.S.
331 (Ont. Prov. Ct.);
R. v. Postama
, [1982] O.J. No. 682 (Ont.
Prov. Ct.); and

·

Criminal Code
, s. 732.1(5):
R. v. Bremmer
,
2006 ABPC 93 (Alta. Prov. Ct.) at paras. 6, 19, (2006), 79 W.C.B. (2d) 166
(Alta. Prov. Ct.).

[42]

Since
Loutitt
, I am aware that
R. v. Hammoud
, 2012 ABQB
110, applied objective
mens rea
to an offence contrary to s. 145(2):
Hammoud
at para. 21
.

[43]

Ultimately the Supreme Court of Canada may have to settle the
conflicting law across Canada, although I note that some of the above-mentioned
cases appear to conflate
mens rea
with lawful excuse.

Principles of statutory interpretation

[44]

Criminal offences consist of proof of the
actus reus
, the
prohibited conduct, and proof of m
ens rea
, the required fault element. This
appeal considers whether the
mens rea
for s. 145(3) should be
assessed subjectively or objectively.

[45]

If the requisite
mens rea
is subjective (what is actually in the
mind of the accused person, or subjective foreseeability of consequences), the
accused person must have committed the prohibited act intentionally or
recklessly with knowledge of the facts constituting the prohibited act or with
wilful blindness:
R. v. Sault Ste. Marie
, [1978] 2 S.C.R. 1299 at 1309.
In other words, for breach of a condition of a recognizance, the Crown must
prove that the accused person knew their conduct would infringe a condition of
release or was reckless or wilfully blind.

[46]

If the requisite
mens rea
is objective, sometimes referred to as
penal negligence (the absence of due care in the mind of the accused person),
the question is whether a reasonable person in the circumstances would have
seen the risk that the accused persons conduct would infringe a condition of
release and whether the conduct is a marked departure from what a reasonable person
would have done in the circumstances:
A.D.H.
at para. 3.

[47]

In my view, determining the requisite
mens rea
in this case turns
on the application of the principles of statutory interpretation described in
A.D.H.
,
a case where the Supreme Court of Canada inferred a subjective fault element
for s. 218 of the
Criminal Code
(child abandonment) when the fault
element was not expressly set out in the language of the section. Since
s. 145(3) does not expressly set out the requisite fault element, this
Court must infer the fault element to discern parliamentary intent:
A.D.H.
at para. 20.

[48]

The starting point is the presumption that Parliament intends crimes to
have a subjective fault element:
A.D.H.
at para. 23, citing Dickson
J. in
Sault Ste. Marie
. This ensures the morally innocent are not
punished. However, the presumption is a principle of statutory interpretation
and not a rule:
A.D.H
. at paras. 25, 27. The presumption is
rebuttable where there are clear expressions of a different legislative intent:
at para 27.

[49]

Determining legislative intent requires read[ing] the words of the
statute in their entire context, in their grammatical and ordinary sense
harmoniously with the scheme of the statute, its objective and the intention of
Parliament:
A.D.H.
at para 19. Indicators of legislative intent include
the statutory text, breadth, context and purpose, along with a good dose of common
sense:
A.D.H.
at paras. 39-72, 83.

A.

Statutory Text

[50]

In
A.D.H.
, Cromwell J. described five main types of objective
fault offences in the
Code
: at para. 56. These are dangerous
conduct (such as dangerous driving); careless conduct (such as careless storage
of a firearm); predicate offences (such as unlawful act manslaughter); criminal
negligence; and
duty-based offences
: at paras. 57-63. Moldaver J.,
in dissent, noted that Professor Roach described a duty based-offence as a
failure to act  where an individual has a specific legal duty to act. Likewise,
Professor Roach
described
disobeying a court order as a
duty-based offence:
A.D.H.
at para. 121 citing
Kent
Roach,
Criminal Law
, 5th ed (Toronto:  Irwin Law, 2012) at 115-16
.

[51]

A court order imposes upon the accused person a specific legal duty to
act and falls within the description of a duty-based offence. Similarly, in my
view, s. 145(3) fits within an objective fault duty-based offence as Parliament
based s. 145(3) on a violation of a duty.

[52]

Section 145(3) falls under Part IV of the
Criminal Code
, Offences
Against the Administration of Law and Justice, and provides:

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
who
fails
,
without lawful excuse
, the proof of which lies on
them, to comply with the condition, direction or order 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.

[Emphasis added.]

[53]

The operative language of s. 145(3) in its ordinary and grammatical
sense demonstrates Parliaments intention to discharge the duties imposed with
reference to uniform normative standards. For example:

a)

At large
is to have escaped, which in practice means the accused
is not imprisoned:
The Oxford English Dictionary
, 11th ed,
sub verbo
large.

b)

An
undertaking
is a formal pledge or promise that imposes a
binding legal duty:
The Oxford English Dictionary
, 11th ed,
sub verbo
undertaking.

c)

A
recognizance
is a debt the accused person owes to the Crown
that is acknowledged in court and places obligations on them the moment it is
pronounced by a judge.

d)

Bound to comply
is to impose a legal or contractual obligation to
meet specific standards:
The Oxford English Dictionary
, 11th ed,
sub
verbo
bind, comply.

e)

A
condition
requires that certain things exist before something
else is possible (
i.e.
being released):
The Oxford English Dictionary
,
11th ed,
sub verbo
condition.

f)

Fails
indicates acting contrary to the agreed legal duty or
obligation and being unable to meet set standards or expectations:
The
Oxford English Dictionary
, 11th ed,
sub verbo
fail.

g)

Without
lawful excuse
defines the defence available to the accused person. The
availability of the defence prevents punishing the morally innocent.

[54]

The offence is not framed with language identified in
A.D.H.
as
requiring subjective intent, which is indicated by the use of language such as
willful, expose, or abandon (for s. 218 of the
Criminal Code
).
Rather, the language of  s. 145(3) addresses discharging an obligation in
objective terms similar to s. 215 of the
Criminal Code
(duty to
provide necessaries of life)

considered in
R. v.

Naglik
,
[1993] 3 S.C.R. 122:
A.D.H.
at paras. 43-49. Both ss. 215 and
145(3) identify a specific legal duty
 it is expressed in
s. 215 as a legal duty to provide necessaries of life and in s. 145(3)
as being bound to comply with a condition of an undertaking or recognizance
and both sections

frame the offence as fails
without lawful excuse, the proof of which lies on them to discharge the
obligation at issue. The Supreme Court of Canada has confirmed s. 215 is a
duty-based offence attracting an objective fault standard:
A.D.H.
at paras. 63-72.
Lamer C.J.C. commented in
Naglik
about the language in s. 215 of
the
Criminal Code
:

[42]  the failure to perform a
duty suggests that the accuseds conduct in a particular circumstance is to
be determined on an objective, or community, standard. The concept of a duty
indicates a societal minimum which has been established for conduct: as in the
law of civil negligence, a duty would be meaningless if every individual
defined its content for him or herself according to his or her subjective
beliefs and priorities. Therefore, the conduct of the accused should be
measured against an objective, societal standard to give effect to the concept
of duty employed by Parliament.

[55]

The plain meaning of the words in the text of s. 145(3) and the specific
legal duty to act a certain way support the duty-based nature of the provision.

B.

Statutory Context and Purpose

[56]

R. v. Antic
, 2017 SCC 27, establishes that every accused person
has the right to reasonable bail and to be released on the least onerous
conditions unless the Crown shows cause for detention or more onerous bail conditions.
Terms and conditions of release are imposed only to the extent necessary to
satisfy s. 515(10) of the
Criminal Code
, which sets out the
primary, secondary, and tertiary grounds for detention: flight risk, public
safety, and public confidence in the administration of justice. Having regard to
the criteria in s. 515(10) and to the specific circumstances of the
offence and offender, the bail judge is tasked with considering reasonable bail
in each case. The bail system is based on the promises to attend court made by
accused persons and on their belief in the consequences that will follow if
such promises are broken:
Antic
at para. 54. Otherwise the bail
system would be ineffective.

[57]

Section 145(3) is inherently linked to s. 515(10). It is duty-based
and risk- based. It promotes the proper functioning of the bail system by
providing an enforcement mechanism. At interest is not only protection of the
public and maintaining confidence in the administration of justice but also
enabling a court to control its own process thereby maintaining dignity,
respect, and integrity of the justice system:
R. v. Patko
, 2005 BCCA 183
at para. 23. The purpose of the section is to mitigate the risks of
releasing an accused person into the community by imposing a minimum uniform
standard of conduct having regard to societal interests rather than personal
standards of conduct. A failure to comply with court-imposed conditions of
release, which under s. 515 (10) must be minimal, reasonable, and
necessary, thwarts or defeats the bail system and public confidence in the
administration of justice.

[58]

Ludlow
recognized that conditions imposed on an accused person
under a recognizance are serious obligations concerning the proper
administration of justice:
Ludlow
at para. 40. In exchange for
liberty, an accused person agrees to, and is expected to, fulfil the court-imposed
obligations.

[59]

The statutory purpose of s. 145(3) supports the duty-based nature
of the provision.

C.

Statutory Breadth

[60]

Applying an objective standard of
mens rea
does not render the
scope of potential liability under s. 145(3) unduly broad, as criminal
liability is restricted to the accused person named in the undertaking or
recognizance who has secured their release by agreeing to abide by conditions a
judge deemed as minimal, reasonable, and necessary with regard to s. 515(10).
The obligations are limited in number, reduced to writing, and made explicitly
known to and accepted by the accused person as a condition of their release.
This can be contrasted with the wide range of persons and conduct
falling within the scope of s. 218
:
A.D.H.
at paras. 40-41.

[61]

An objective fault standard does not punish the morally blameless. It
does not punish acts of simple negligence. It requires proof of a
marked
departure
from the standard of care that a reasonable person would observe
in the circumstances.

[62]

McLachlin J. (as she then was) confirmed that objective fault requires a
uniform standard that does not incorporate individualized characteristics such
as age and experience:
Creighton
at 41, 60-74. To the extent that an
accused person may have cognitive difficulties that could potentially impact
their ability to comply with conditions of release, the bail judge would
account for these in assessing the appropriate form of release. The ladder
principle can accommodate such deficiencies by, for example, requiring a surety
to supervise the accused to ensure compliance with the conditions of release:
Antic
at paras. 2, 4,
Patko
at para. 22.

[63]

Section 145(3) does not give rise to sufficient social stigma or penalty
to require a subjective
mens rea
as evidenced by the maximum sentence of
two years.

[64]

The statutory breadth of s. 145(3) supports the duty-based nature
of the provision.

The fault element of s. 733.1
of the
Criminal Code

[65]

Mr. Zora submits that the fault element for s. 733.1 of the
Criminal
Code
(breach of a probation order) is instructive in determining the fault
element for s. 145(3). Mr. Zora relies on
R. v. Docherty
, [1989]
2 S.C.R. 941, which held that the
mens rea
for s. 733.1 is
subjective. However, a probation order is not the functional equivalent of a
recognizance or undertaking. The two are different offences, in different
sections of the
Criminal Code
, with distinct language, legislative
history, and consequences. Furthermore, I would question whether
Docherty
has
been overtaken by changes in the legislation and subsequent decisions, but that
is not an issue before this Court.

Conclusion

[66]

In my view, the indicators of Parliaments intent regarding the fault
element demonstrate that s. 145(3) is a duty-based offence that attracts
an objective standard of
mens rea
. Section 145(3)
recognizes
that persons who have been released are under a legal duty to comply with the
conditions of their release; it therefore

creates
legal duties respecting particular persons in particular circumstances and is
aimed at establishing a uniform minimum level of care undertaken by those to
whom it applies. The duty imposed is a societal, and not a personal, standard
of conduct. The section ensures that those granted judicial interim release by
means of an undertaking or recognizance made to court will comply with the
terms and conditions. This ensures proper functioning of the criminal justice
system generally and the bail system specifically.

[67]

A review of the language, breadth, context and purpose of s. 145(3),
as well as the gravity of the crime and social stigma attached, confirms the offence
is duty-based, requiring objective
mens rea
to establish the fault
element of the offence.

[68]

In my view, the trial judges findings of fact, which are not disputed,
support the convictions in this case because Mr. Zoras failure to present
himself at his door for two curfew compliance checks demonstrates a marked
departure from what a reasonable person would have done in the circumstances. A
reasonably prudent person in the circumstances would have foreseen or
appreciated the risk or could have done something to prevent the breach. His explanation
does not amount to a lawful excuse for the breaches.

[69]

I would dismiss the appeal.

The Honourable Madam Justice Stromberg-Stein

I agree:

The Honourable Mr. Justice
Willcock

I agree:

The Honourable Mr. Justice
Savage

I agree:

The Honourable Madam Justice
Fisher

Reasons for Judgment of the Honourable Madam Justice
Fenlon
:

[70]

I have had the benefit of reading the draft judgment of my colleague,
Madam Justice Stromberg-Stein. I agree that Mr. Zoras appeal from
conviction should be dismissed, but respectfully disagree as to the mental
element of the offence created by s. 145(3) of the
Criminal Code
.
In my view, that section imports a subjective fault standard. My reasons for that
conclusion follow.

[71]

Like my colleague, I begin with the presumption that Parliament intends
crimes to have a subjective fault element. In
Sault Ste. Marie
, Dickson
J. described the presumption this way (at 1303, 130910):

In the case of true crimes there is a presumption that a
person should not be held liable for the wrongfulness of his act if that act is
without
mens rea
.

Where the offence is criminal, the Crown must establish a
mental element, namely, that the accused who committed the prohibited act did
so intentionally or recklessly, with knowledge of the facts constituting the
offence, or with wilful blindness toward them.
Mere negligence is excluded
from the concept of the mental element required for conviction. Within the
context of a criminal prosecution a person who fails to make such enquiries as
a reasonable and prudent person would make, or who fails to know facts he
should have known, is innocent in the eyes of the law
.

[Emphasis added; citations
omitted.]

[72]

Although the presumption must give way to clear expressions of a
different legislative intent as Cromwell J. stated in
A.D.H.
(at para. 27),
Parliament must be understood to know that this presumption will likely be
applied unless some contrary intention is evident in the legislation (at para. 26).

[73]

In my view, neither the words used in s. 145(3), nor the design of
the offence supports a clear legislative intent to displace the subjective
fault element that is the foundational principle of our criminal law.

[74]

Many judges, including Mr. Justice Thompson in the court
immediately below, have noted that s. 145 is not clear as to the
mens
rea
required for conviction. That lack of clarity is evident in the
conflicting views on the issue expressed in the cases cited by my colleague at paras. 41
and 42 of her judgment. In my view, the lack of clarity in s. 145
regarding the
mens rea
required for conviction weighs heavily in favour
of giving effect to the presumption of subjective intent. As Cromwell J. observed
in
A.D.H.
to the extent that Parliaments intent is unclear, the
presumption of subjective fault ought to have its full operation..

[75]

There is nothing startling in the notion that Parliament would
incorporate this standard of mental fault into the offence of breach of bail
conditions. The offences created by s.145 carry a maximum two-year period of
incarceration and therefore directly threaten the liberty interest of the
accused. Further, as Trotter J.A. (writing extra-judicially) notes in the
Law
of Bail
(at 12-2):

Along with the possibility of
imprisonment, an accused who is charged with one of these offences must
discharge the onus of proof in respect of further release. [s. 515(6)(c).]
Moreover, an accused person with one or more convictions for this type of offence
will have a more difficult time obtaining release in the future.

[76]

Section 145(3) does not contain any of the language typically used by Parliament
when it intends to create an offence involving objective or penal fault. That
language was thoroughly reviewed by Cromwell J. in the following paragraphs of
A.D.H.
from which I quote at length:

[57]
We come first to offences defined
in terms of dangerous conduct
. In
R. v. Hundal
, [1993] 1 S.C.R. 867,
the Court found that
the fault element of

the offence of dangerous
driving was a manner of driving which constituted a marked departure from that
expected of a reasonable person in the same circumstances
. (See also, more
recently,
Beatty
and
R. v. Roy
, 2012 SCC 26, [2012] 2 S.C.R. 60.)
Several factors justified adopting an objective rather than a subjective fault
requirement: driving is a regulated activity in which people choose to engage;
driving is automatic and reflexive in nature; and the text of the offence
focuses on the manner of driving, all of which suggest that the offence seeks
to impose a minimum uniform standard of care. Cory J. noted, for example, that [l]icensed
drivers choose to engage in the regulated activity of driving. They place themselves
in a position of responsibility to other members of the public who use the
roads:
Hundal
, at p. 884 (emphasis added).
With respect to the
text of the provision, Cory J. observed that it creates an offence of driving
in a manner that is dangerous to the public,

having regard to all the
circumstances and this suggests an objective standard: The manner of
driving can only be compared to a standard of reasonable conduct
(p.
885). So in the case of dangerous driving both the text and nature of the
provision, as well as other factors, provided strong support for an objective
fault element. None of those factors is present in the s. 218 offence.

[58]
Next, there are offences which are
expressed in terms of careless conduct, such as the careless storage of
firearms
. In
R. v. Finlay
, [1993] 3 S.C.R. 103, the Court concluded
that the carelessness targeted by the offence is not consistent with subjective
fault. The provision required the Crown to establish that a firearm was used,
carried, handled, shipped or stored in a careless manner or without reasonable
precautions for the safety of other persons.
The use of the word careless
and the reference to reasonable precautions were clear markers of objectively
assessed fault
(pp. 114-15). There is no similar language in s. 218.

[59]
A third category relates to
so-called predicate offences. These are offences such as unlawful act
manslaughter and unlawfully causing bodily harm which require the commission of
an underlying unlawful act. They have been found to require the mental element
for the underlying offence but only objective foresight of harm flowing from it
:
see, e.g.,
R. v. DeSousa
, [1992] 2 S.C.R. 944 (unlawfully causing bodily
harm);
R. v. Creighton
, [1993] 3 S.C.R. 3 (unlawful act manslaughter). Without
reiterating the detailed reasons given in those cases, I simply underline that
these offences are ones in which the commission of the predicate or underlying
offence has actual and serious consequences. As Sopinka J. said in
DeSousa
(at p. 967) and McLachlin J. repeated in
Creighton
(at p. 55):
The implicit rationale of the law in this area is that it is acceptable to
distinguish between criminal responsibility for equally reprehensible acts on
the basis of the harm that is actually caused. This rationale has no
application to s. 218; there is neither a predicate offence nor any need
to show that actual harm resulted from the conduct in the child abandonment
offence.

[61]
[Fourth]  criminal negligence
requires a marked and substantial departure from the conduct of a reasonably
prudent person in circumstances in
which the accused either recognized and
ran an obvious and serious risk or, alternatively, gave no thought to that risk:
R. v. J.F.
, 2008 SCC 60, [2008] 3 S.C.R. 215, at paras. 7-11.

[Emphasis added.]

[77]

Other language indicative of an objective standard was reviewed by Professor
Stuart in
Canadian Criminal Law: A Treatise
, 6th ed (Scarborough:
Carswell, 2011) at 274:

.The
Criminal Code
has
long contained a wide variety of offences which expressly adopt an objective
standard such as ought to, reasonable care, good reason, reasonable
ground, reasonably expected or reasonable steps.

[78]

What of the word fails used in s. 145(3)? In my view it is a
neutral one. Fails can connote neglect, but as my colleague notes, also means
acting contrary to the agreed legal duty or obligation and being unable to meet
set standards or expectations:
The Oxford English Dictionary
, 11
th
ed,
sub verbo
fail. That definition is equally compatible with intentional
conduct or inadvertence.

[79]

My colleague places considerable emphasis on the duty-based nature of
s. 145(3) and the risk-based nature of bail provisions, relying on the fifth
category of objective fault offence described at para. 63 of
A.D.H.
In my respectful view, however, s. 145(3) does not fit that category of
offence for the following reasons.

[80]

First, the duty-based offences discussed in
A.D.H.
----ss. 215,
216, 217, and 217.1---expressly include the word duty. Section 145(3) does
not, and the omission is a significant one. In
A.D.H.
the majority
concluded that s. 218 (child abandonment) imported a subjective standard
and was distinguishable from the other objective fault offences noted above because
s. 218 was not defined in terms of failure to perform specified legal
duties: at paras. 66, 68. That was found to be so despite the nature of
the offence which could be described as imposing a duty on caregivers to behave
in a particular way  just as persons released on bail have a duty to comply
with the conditions of their release.

[81]

More importantly, the objective fault offences addressed in
A.D.H.
impose
duties that have to be given content by reference to an
objective societal
standard
. Section 215 imposes a duty on persons in various relationships to
provide necessaries of life, such as the duty owed by parents to their
children. Section 216 imposes a duty on persons undertaking acts dangerous to
the life of another person, such as medical procedures, to possess and use
reasonable knowledge, skill and care in doing so. Section 217 imposes a general
duty on persons to follow through with an act that they have undertaken to
complete if omitting to do so would be dangerous to life; and section 217.1 imposes
a duty on persons who undertake or have the authority to direct how others
complete work or perform tasks in the workplace to take reasonable steps to
prevent bodily harm arising from the work or task.

[82]

As Chief Justice Lamer observed in
Naglik
at 141:

With respect to the wording of s. 215,
while there is no language in s. 215 such as ought to have known
indicating that Parliament intended an objective standard of fault,
the
language of s. 215 referring to the failure to perform a duty
suggests
that the accuseds conduct in a particular circumstance is to be determined on
an objective, or community, standard.
The concept of a duty indicates a
societal minimum which has been established for conduct
: as in the law of
civil negligence,
a duty would be meaningless if every individual defined
its content for him or herself
according to his or her subjective beliefs
and priorities.
Therefore, the conduct of the accused should be measured
against an objective, societal standard to give effect to the concept of duty
employed by Parliament
.

[Emphasis added.]

[83]

In contradistinction, when an accused is released on bail there is no
need to import a societal minimum to define the content of expected conduct.
Rather, as in the present case, detailed and particular expectations of conduct
are imposed, such as being at a particular address between fixed hours,
abstaining from illicit drugs, refraining from contacting identified persons,
reporting to a bail supervisor, and so on. Even the more general requirement to
keep the peace and be of good behaviour has a defined content:
R. v. W.
(L.T.)
, 2004 N.J. No. 260. There is thus no need to import a societal
standard against which the accuseds conduct should be objectively measured in
order to give effect to the obligation imposed by s. 145(3).

[84]

Second, unlike my colleague, I do not view Professor Roachs inclusion of
disobeying a court order on his list of duty-based offences as supportive of
the argument that s. 145(3) falls into the fifth category of duty-based
offences described in
A.D.H.
The passage from Professor Roachs text
quoted by Moldaver J. in dissent addresses the distinction in law between acts
of commission and acts of omission. Most penal provisions are directed at acts
of commission  i.e., Dont do X. Generally, an act of omission  doing
nothing  will not constitute the
actus reus
of an offence. Thus it is
necessary to impose a legal duty to act before a failure to act can be
considered an offence. In the passage relied on by my colleague, Justice
Moldaver provides that context, saying:

[121]    Likewise, Professor Roach, at
pp. 115-16 of his text, explains that although an omission will not
generally constitute the
actus reus
of an offence, a failure to act will
suffice where an individual has a specific legal duty to act. He then
includes child abandonment in his list of duty-based offences:

There is a duty to use reasonable care when
providing medical treatment or other lawful acts that may endanger the life of
others. This duty was breached by a person who donated blood that he knew was
infected with HIV. It is also an offence not to use reasonable care in handling
explosives; to disobey a court order; to fail to assist a peace officer when
requested; to abandon a child; not to obtain assistance in child-birth; to fail
to stop when your vehicle is involved in an accident; to neglect animals; and
to fail to take steps to protect holes in ice or open excavations. [Footnotes
omitted; emphasis in original omitted; p. 116.]

It is in this particular context that compliance with a
court order is described as a duty-based offence.

[85]

Further, I note that Professor Roach includes s. 218 in the list of
duty-based offences---the duty not to abandon a child---which the majority in
Naglik
found to be a
subjective
fault offence. In other words, the fact
that an offence may be described as duty-based does not lead to the inexorable
conclusion that it imports an objective standard of fault.

[86]

Third, an objective standard of fault is often used to penalize conduct
which, even though inadvertent, may have appalling consequences for others,
such as dangerous driving or careless use or storage of a firearm. The
duty-based offences described in the fifth category of
A.D.H.
are found
in the
Criminal Code
under the heading Duties tending to preservation
of life. In relation to conduct of this kind, Parliament has seen fit to
impose a minimum uniform standard of care and to punish departures from that
standard even in the absence of intentional conduct. In my view, bail
conditions are not of that ilk. They are intended to minimize flight risk,
maintain public confidence in the administration of justice, and protect the
public, but a breach will not generally give rise to the same level of risk of
direct and significant harm to persons or property.

[87]

In my view, there is much to recommend a subjective standard of fault in
relation to breach of bail conditions. An objective standard of fault does not
permit consideration of the inexperience, lack of education, youth, cultural
experience, or any other circumstance of the accused:
Creighton
at 5874
(
per
McLachlin J.), 3839 (
per
La Forest J.);
Naglik
at
148 (
per
McLachlin J.), 149 (
per
LHeureux-Dub
é
J.). Under an objective fault
standard, only incapacity or virtual inability to comply with a bail condition
 such as a severe illness or severe weather preventing travel  would prevent
conviction. Some have argued that [j]udging everyone by an inflexible standard
of a monolithic reasonable person, where an accused could not have measured up
may in effect amount to absolute liability: see Stuart,
Canadian Criminal
Law
at 280; see also
Creighton
at 26 (
per
Lamer C.J.).
Further, the addition of a defence of lawful excuse does not address all of
the circumstances in which an objective standard could work an injustice  which
in part explains, in my view, the reluctance of trial judges to adopt it.

[88]

R. v. Josephie
, 2010 NUCJ 7, is one such example. In that case, Mr. Josephie
was charged with failing to appear. He had forgotten to attend court.
Kilpatrick J. described the circumstances of the offence as follows:

[2]        Mr. Josephie was released by the RCMP
Kimmirut detachment on a promise to appear dated May 15
th
, 2009.
This document compelled him to attend court in Kimmirut on October 13
th
,
2009.

[3]        In July, Mr. Josephies daughter became ill
with the H1N1 virus. She was in the prime of her life and eight months pregnant
when she passed away. The unborn child died with her.

[4]        Mr. Josephie travelled from Kimmirut to Arviat
for the funeral. On the return trip, he decided to relocate to Iqaluit. He did
not go back to Kimmirut to pick up his belongings. The promise to appear was
among the personal effects left behind in Kimmirut.

[5]        Mr. Josephie was devastated by the loss of
his daughter. He struggled to come to terms with the awful finality, and cruel
circumstances of this untimely death. In the weeks following the funeral, he
thought of little else. Mr. Josephie slumped into a depression.

[6]        Mr. Josephie says that while he grieved he
did not direct his mind to his coming court appearance. He says that he did not
remember that he had court until he was told by the RCMP in January 2010 that a
warrant had issued for his arrest. After being told that he had missed court, Mr. Josephie
promptly attended the Court house in Iqaluit to clear the warrant.

[7]        Mr. Josephie
concedes that after leaving Kimmirut for the funeral he took no special steps
to help him remember his court date.

[89]

The Crown argued in that case that once it had proved beyond a
reasonable doubt that Mr. Josephie had failed to appear in court as
required by law, the onus of proof shifted to him to establish a lawful excuse.
Crown counsel argued that Mr. Josephie was objectively negligent because
he took no steps to remind himself of his court date and there was no lawful
excuse he could advance to explain his failure to appear. Kilpatrick J.
observed that:

[24]      The introduction of an objective fault standard
might make for a more efficient criminal justice system, but such a system
would not necessarily achieve greater justice. Such efficiency would undermine
the philosophical underpinnings upon which the criminal justice system is
built. It would confuse societys rationale for the punishment of crime.

[25]
An objective
mens rea
requirement would
criminalize the behaviour of a wide range of citizens who are challenged by
mental disabilities and psychological and psychiatric disorders. The objective
standard of reasonable diligence would cast its net broadly. Many disadvantaged
individuals, including those afflicted by Fetal Alcohol Spectrum disorder,
would not likely measure up to such a standard
.

[Emphasis added.]

Ultimately he acquitted the
accused saying:

[29]      Mr. Josephie may
have been negligent in not taking reasonable steps to remember his court date.
However, this is not the test for criminal liability. His stated reasons for
failing to attend court are not seriously challenged by the Crown. Mr. Josephie
was not shaken in cross examination. The only evidence before me is that he did
not address his mind to his court obligations at all in the wake of a profound
personal tragedy.

[90]

To the extent that it might be argued that an objective standard makes
for the more orderly administration of justice, that could be said of all
Criminal
Code
offences, and yet the subjective standard remains presumptively and
firmly in place. The fear that an accused will be able to avoid conviction for
breach of a bail condition by simply asserting I forgot the date; or I did
not hear the police knocking is in my opinion overstated. That fear
underestimates the intelligence and common sense of triers of fact. As the
Alberta Court of Queens bench observed in
R. v. Loutitt
at para. 17,
The sky will not fall if the Crown has to prove a mental element.

[91]

In summary, I see no basis in the context or language of s. 145(3)
to displace the presumption of subjective intent. It would follow that, to
prove the mental element of breach of a bail condition, the Crown must prove
that the accused person knew their conduct would infringe a condition of
release, was reckless, or was wilfully blind.

[92]

I turn now to the application of that standard to the circumstances of
the present case.

[93]

As noted above, 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:
Sault
St. Marie
at 1309.

[94]

In my view the uncontested facts establish that Mr. Zora was
reckless. Mr. Zora testified that he often went to bed early, about 8 or
8:30 pm and slept heavily. He said he was aware that when in his bedroom he
could not hear someone at the front door. In cross-examination, after
acknowledging that the police had been checking in on him almost every day to
ensure compliance with his curfew, this exchange took place:

Q         Okay. And -- and where was your bedroom
located at that time?

A          At that time it was downstairs in the far
side of the house in the -- basically we have a two-level house and it was in
the bottom -- if you're looking at the house from the street, it was the very
bottom right side.

Q         Okay.

A          There's actually an outside door that leads
to the garage from there.

Q         So it was at the -- the front of the house
that's facing the street?

A          Very front, yeah, front on the right side of
the street.

Q         Could you hear the doorbell from that bedroom?

A          No.

Q         So how is that you attended at the door on
those earlier occasions?

A          Well, I don't sit in my room all day, I was
just out a bit -- we have a TV in the living room.

Q         But the police were coming later at night.

A          Well, they --

Q         To check on you.

A          -- they've been coming at random times.

Q         Okay. Was there ...

A          He was just there at an earlier time, I just wasn't
in my room at that point.

Q         And when did you move upstairs?

A          I moved upstairs after I found out I had the
first breach after I got out of CDRC, I moved all my stuff upstairs and put
cameras up and everything just to try to make sure I didn't get any more breaches.

Q         So when did you put the cameras up?

A          When I got out of CDRC.

Q         When was that? Like what month?

A          I -- I went in October, so November probably.

Q         Okay. So after -- after these alleged offence dates
you put the camera up?

A          When he told me I had a breach and he said he
was here and we got -- you know, I was like, "I've been here" and
whatnot, I put cameras up to see -- so I could -- with video and audio so I can
know when somebody is at the door when I'm upstairs just so I don't miss the
door and I also now, like I said, sleep downstairs on the couch so I really don't
miss the door.

Q         And does that -- does that camera record --

A          No.

Q         -- movement?

A          It's a baby monitor basically.

Q         Okay.

A          It's a video baby
monitor so I can hear everything that's going on outside the front door and
see.

[95]

In my view, an accused who is required by his bail conditions to appear
at the door when police attend, knows that he will not hear them ring or knock
if he is in certain parts of his residence, and makes no effort to address that
situation, displays recklessness consistent with a guilty mind. The problem Mr. Zora
ignored was readily solved after he was charged with breach of the terms of his
release: he began sleeping in a different bedroom and used a commonplace baby
monitor.

[96]

In this case, the application of either a subjective or objective
standard of fault leads to the same result, but that will not always be so. With
great respect to those whose views may differ, I conclude that s. 145(3)
requires the Crown to prove a subjective standard of mental fault.

The
Honourable Madam Justice Fenlon