Many clients struggle with the fact that, at a bail hearing, a court can and will order restrictions on their liberty before they have been found guilty of any offence. We get asked: “What about the presumption of innocence? Doesn’t that matter?”

The presumption of innocence is a vitally important constitutional right, no doubt. This presumption means that, at trial, persons charged with criminal offences do not have to say anything in their defence. Instead, it is the job of the Crown Attorney to prove, beyond a reasonable doubt, that they are guilty.

The standard of “beyond a reasonable doubt” is very high – closer to certainty than probability. In contrast, the evidence that police need to arrest someone (called “reasonable and probable grounds”) is low. For example, in many domestic cases, if someone gives a statement to police alleging that their partner engaged in criminal behavior, that is all police need to go and arrest that person. If the police do not release that person with a Promise to Appear, they are held for a bail hearing.

Bail hearings operate in a quasi-reality, somewhere between the position of “presumed innocent” and the position that, “we need to put protections in place as if something did happen”. Many justice participants are concerned with the restrictions on liberty imposed in bail hearings, and the artificiality of the presumption of innocence at the bail hearing stage.

Defence counsel do their best to limit the restrictions of liberty to conditions that are directly related to the offence. For example, if the allegation is that the client got drunk at a bar and assaulted someone, typical conditions would include not going to that bar, and not speaking with or seeing the alleged victim. In this example, a bail condition that restricts access to the internet would be unreasonable, as the internet had nothing to do with the allegations.

So what happens if you breach your condition? They can be arrested again, under section 145 of the Criminal Code. Now that sounds even more unfair: new criminal charges, flowing from conditions that were imposed for an earlier offence, that you have not even been found guilty of? It can be deeply upsetting for our clients.

On a positive note, the Supreme Court of Canada recently confirmed (in the case R v. Zora, released in June 2020) that in order to be found guilty for breaching bail conditions, the Crown must prove that the person subjectively meant to breach the conditions.

The mental aspect of criminal offences is called the mens rea. When an offence requires proof of objective mens rea, the Crown simply needs to prove that the failure to comply with the bail condition represents a “marked departure from what a reasonable person in the same situation would do,” not that the person either intended to breach his bail condition, knew that he was breaching it, or was reckless as to whether he breached it or not.

In the Zora case, Mr. Zora’s bail condition required him to answer the door when/if police came to visit (sometimes called a “spot check”). Police rang the doorbell, he did not answer, so he was charged under section 145. At his trial, Mr. Zora testified that when the police came to his door, he was in his bedroom, and that it is very difficult to hear the doorbell from his bedroom. He did not mean to ignore the doorbell; he just hadn’t heard it. He was initially convicted of the offence, because, according to the objective mens rea standard, the argument is that a “reasonable person” would have made arrangements about this issue. What Mr. Zora did or did not intend does not matter.

The Supreme Court of Canada disagreed. They reaffirmed that, for offences under section 145, the mens rea element is subjective – what the person intended is what matters. Mr. Zora’s evidence was that he did not mean to ignore the police; he just didn’t hear the doorbell. As a result, Mr. Zora’s convictions were quashed, and a new trial was ordered.

Defence counsel across the country are overjoyed at this latest affirmation from the Supreme Court, as the question of subjective vs. objective mens rea for breaching bail conditions had been applied inconsistently in the past.

If you have been charged with a criminal offence and are held for a bail hearing, the team at DeMelo Law will strive to get you released with the least number of conditions possible. Please contact us today.