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In a recent Supreme Court of Canada decision, the court found that an accused must have subjective mens rea of breaking a bail condition to be found guilty of the breach.

What Happened?

The accused was charged with three counts of possession for the purpose of trafficking contrary to the Controlled Drugs and Substances Act, and was granted bail on his own recognizance with conditions and with his mother as surety.

The accused was given twelve bail conditions, one of which was to remain in his residence, except during the day, in the company of his mother or father or a person approved by his bail supervisor and with the consent of his bail supervisor; this condition was also referred to as his curfew or house arrest condition.

The police came almost every day, at different times in the evening, to check his compliance with the curfew in the month following his release from custody on September 17, 2015. 

However, on two evenings during Thanksgiving weekend in October 2015, the accused failed to present himself at his door when police attended his residence. 

The accused did not know that he had missed the police at his door until two weeks later when he was informed that he was being charged with two counts of breaching his curfew condition and two counts of breaching his condition to answer the door. 

The accused, his mother, and his girlfriend testified that they were all at home during the Thanksgiving weekend. The accused stated it would have been difficult, if not impossible, to hear the doorbell or someone knocking on the front door from his bedroom. He explained that his bedroom was downstairs on the far side of the residence, and that he had been going to bed early because he was withdrawing from heroin and in a methadone treatment program. 

Lower Court Decisions

The trial judge acquitted the accused on the alleged curfew violations as he was not satisfied beyond a reasonable doubt that the accused had been outside of his house at the time. However, he convicted the accused on the two counts of failing to appear at the door for curfew compliance checks under s. 145(3) of the Criminal Code. The trial judge analogized s. 145(3) offences to strict liability offences and therefore found that the accused was guilty of breach of his conditions because he had not “arrange[d his] life to comply with the terms of bail”. The accused was fined a total of $920. 

The summary conviction appeal judge dismissed the appeal and concluded that objective mens rea was sufficient for a conviction under s. 145(3) because in a previous British Columbia Court of Appeal decision the court had adopted an objective fault standard for such types of offences. Therefore, the accused’s convictions were upheld because his behaviour was deemed a marked departure from what a reasonable person would do to ensure they complied with their bail conditions.

A five-judge panel of the British Columbia Court of Appeal also dismissed the appeal. The four-judge majority of the court concluded that s. 145(3) of the Criminal Code only required an objective mens rea. The majority found that the text, context, and purpose of s. 145(3) created a duty-based offence grounded in the specific legal duty to comply with bail conditions, which demonstrated Parliament’s intention to create an offence with an objective mens rea.

The remaining Court of Appeal judge concurred in the result, but found that s. 145(3) required subjective fault. In her view, it was not a duty-based offence and neither the words nor the scheme nor purpose of the offence supported a clear legislative intent to displace the presumptive subjective fault element. However, she nonetheless dismissed the appeal because she concluded that the Crown had established subjective fault by showing that the accused had been reckless since he knew that there were parts of his house where he would not hear the doorbell and yet he had made no effort to address the situation.

Supreme Court of Canada Decision

In a unanimous decision, the Supreme Court of Canada found that under s. 145(3) of the Criminal Code, the Crown is required to prove subjective mens rea. This means that the Crown must establish that the accused breached a condition of an undertaking, recognizance or order knowingly or recklessly. 

Therefore, in this case, the court found that the lower courts had committed an error by applying an objective standard of fault in convicting the accused. 

As a result, the court allowed the appeal and ordered a new trial on the two counts charging the accused with failing to attend at the door of his residence.

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Being criminally convicted can have a significant impact on your life, leading to a permanent record, significant fines, and/or jail time. This can seriously impact your reputation, your employment opportunities, and even your ability to travel outside of Canada. If you have been charged with a criminal offence, it is imperative to consult with a knowledgeable criminal defence lawyer as soon as possible to learn about your options and to protect yourself.

At Campbell Bader LLP, we can help. Our team of exceptional Mississauga criminal defence lawyers has been representing clients charged with criminal offences since 1999. We are highly skilled litigators and have conducted trials in the Superior Court and Ontario Court of Justice. We have the knowledge, experience, and skill-set to effectively defend clients charged with even the most serious of offences. We will listen, consider, and provide you with practical options. Contact us online or at 905-828-2247.