R v Zora

R v Zora, 2020 SCC 14 is a case in which the Supreme Court of Canada held unanimously that the offence of breaching bail conditions under the Criminal Code requires subjective mens rea.[1][2]

R v Zora
Hearing: December 4, 2019
Judgment: June 18, 2020
Full case nameHer Majesty the Queen v Chaycen Michael Zora
Citations2020 SCC 14
Docket No.38540
Prior historyJudgment for the Crown in the British Columbia Court of Appeal
RulingAppeal allowed
Holding
Section 145(3) of the Criminal Code requires subjective mens rea
Court membership
Chief JusticeRichard Wagner
Puisne JusticesRosalie Abella, Michael Moldaver, Andromache Karakatsanis, Suzanne Côté, Russell Brown, Malcolm Rowe, Sheilah Martin, Nicholas Kasirer
Reasons given
MajorityMartin J
Laws applied
Criminal Code s 145(3) [now ss 145(4) and 145(5)]

Background, facts, and procedural history

The Criminal Code defines a number of offences known as administration of justice offences. Such offences concern an accused's behaviour while he or she is involved in the criminal justice system, as opposed to conduct that results in criminal charges in the first instance.[3] Zora concerns the administration of justice offence of breaching bail conditions: failing to comply with rules the court has set to govern an accused's conduct while the accused is out on bail pending trial.

Chaycen Zora had been charged with drug possession under the Controlled Drugs and Substances Act and was released on bail with several conditions.[4] One of these conditions was that he would answer the door when the police came to check on him.[5] Due to his failure to comply with this condition, Zora was charged with an offence under section 145(3) of the Criminal Code.

Zora was convicted at trial and his appeal to the British Columbia Court of Appeal was dismissed.[6][7] The Court of Appeal held that the statute required an objective, not a subjective, standard of mens rea, and that Zora failed to meet the standard. That is, the statute required the Crown to prove that Zora's failure to comply with his bail condition represented a "marked departure from what a reasonable person in the same situation would do,"[8] not that Zora either intended to breach his bail condition, knew that he was breaching it, or was reckless as to whether he breached it or not.

Before the Supreme Court's decision in Zora, Canadian law was not consistent as to whether breach of bail conditions required subjective or objective mens rea. Courts in some provinces adopted one standard, while those in other provinces came to the opposite conclusion.[9] Because criminal law in Canada is defined by federal statute but interpreted and enforced by provincial courts and administrators, breach of bail conditions had become a different offence in different provinces.

Reasons of the Court

Justice Sheilah Martin, writing for a unanimous court, held that the Court of Appeal erred in finding that the statute only required proof of objective mens rea. Rather, s 145(3) requires a subjective standard. She held, following the Court's jurisprudence in R v Sault Ste-Marie (City of) and subsequent cases including R v ADH, 2013 SCC 28, that s 145(3) should be presumed to involve a subjective standard of fault and that the presumption was not displaced.[10] Justice Martin acknowledged that the Criminal Code had been amended after Zora's trial, creating two new offences—at sections 145(4) and 145(5), respectively—to cover the offence for which Zora had originally been convicted, but noted that the substance of the offence of failing to comply with bail conditions had not been significantly changed.[11] Thus, although Zora nominally concerns the interpretation of a now-defunct statute, its holding likely applies to 145(4) and 145(5).

In the result, Justice Martin ordered a new trial.[12]

Commentary

Criminal defence lawyers spoke in favour of the decision, noting that it addressed broader issues in the Canadian bail system beyond the standard of fault in administration of justice offences.[13]

References
  1. See Zora SCC. All justices of the Court agreed with the reasons of Martin J.
  2. Shane, Caitlin (June 26, 2020). "Victory at the Supreme Court of Canada in R v Zora". Pivot Legal Society. Archived from the original on June 29, 2020. Retrieved June 29, 2020. In our view, there is only one suitable standard to limit unreasonable punishment and to protect the fundamental Charter values of liberty and equality: A subjective standard that takes the into account individual circumstances of the accused person. The Court agreed.
  3. Department of Justice (July 15, 2017). The Canadian Criminal Justice System: Overall Trends and Key Pressure Points (Report). Government of Canada. Archived from the original on May 12, 2020. Retrieved June 29, 2020. Also of importance to the overall efficiency of the Court is the impact of charges for administration of justice offences (AOJO), such as failure to appear in court, breach of a probation order, being unlawfully at large, and failure to comply with an order.
  4. Zora SCC at para 8.
  5. Zora SCC at para 3.
  6. Zora CA at para 69.
  7. Novakovski, Mike (April 26, 2019). "Breaching recognizance mens rea is objective not subjective". Blue Line. Archived from the original on June 21, 2020. Retrieved June 19, 2020.
  8. Zora CA at para 2.
  9. Zora SCC at para 31.
  10. Zora SCC at para 4.
  11. Zora SCC at para 18.
  12. Zora SCC at para 123.
  13. Balakrishnan, Anita (June 18, 2020). "Zora decision finds subjective mens rea applies to bail conditions, breaches". Canadian Lawyer. Archived from the original on June 20, 2020. Retrieved June 19, 2020.
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