R v Zora, 2019 BCCA 9: The Reasonable Person on Bail
Recently, in R v Zora, a 5-member panel of the British Columbia Court of Appeal purported to answer whether bail offences (i.e. breaches) attract an objective or subjective fault standard. Turns out, countless courts, including other appellate courts, have diverged on this question (see para. 41 for a comprehensive list of these decisions). As noted by the majority in Zora, "[u]ltimately the Supreme Court of Canada may have to settle the conflicting law across Canada..." (para. 43).
The Facts
Mr. Zora was bound by a bail condition that required him to appear at the door of his residence when police attended. In fact, the police had attended at his residence on prior occasions without incident: Mr. Zora had dutifully appeared at the door. However, on October 9 and 11, 2015, no one appeared at the door, and Mr. Zora was later charged.
At trial, Mr. Zora testified that he was at his residence but likely asleep and that from where he slept it was difficult, if not impossible to hear the doorbell or knocking. Moreover, he said, he was undergoing methadone treatment which made him very sleepy. After he was breached, Mr. Zora moved his bedroom and installed an audio-visual system to alert him to the police presence (paras. 3-10, 94).
The trial judge apparently disbelieved the evidence of Mr. Zora and other defence witnesses (para. 11) but was not satisfied beyond a reasonable doubt that Mr. Zora was actually outside of the residence at the relevant time (para. 13). Acquitted of the curfew breach allegations, the trial judge held that Mr. Zora’s explanation of being possibly asleep was not a lawful excuse and convicted him for failing to appear at the door. The factual findings of the judge were not challenged nor disturbed on appeal.
The Decision
Before plunging into the decision, I offer a refresher and a caveat.
A refresher: The objective fault standard “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": R v Creighton, [1993] 3 SCR 3 at p. 58. Notably, the Supreme Court recently granted leave in a “penal negligence” case. See: R. c. Javanmardi, 2018 QCCA 856 (leave granted on May 31, 2018). A brief summary of this fascinating case can be found here.
A caveat: Zora, at least on appeal, is not about the lawful excuse defence, which only arises once the Crown has discharged its onus of proving its case, including the fault requirement, beyond a reasonable doubt (para. 22).
The Majority
Justice Stromberg-Stein, writing for the 4-member majority, reasoned that because bail offences are "duty-based offences" and because "duty-based offences" generally attract the objective fault standard, the objective fault standard should thus apply to bail offences. Duty-based offences are described “a failure to act … where an individual has a ‘specific legal duty to act’” (see paras. 50-55). In this context, “[i]n exchange for liberty, an accused person agrees to, and is expected to, fulfil the court-imposed obligations" (para. 58).
The majority asserted that the morally blameless would not be punished by the objective fault standard because it only applies to those who are bound by court orders; the court-imposed 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" (para. 60). Moreover, the Crown would still have to prove "a marked departure from what a reasonable person in the same situation would do", noting that "[i]f 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" (paras. 2, 61).
But what about people with human frailties or other circumstances that make it difficult for them to measure up to the reasonable person? After all, the objective standard is uniform and does not account for such “individualized characteristics" (para. 62). Not to worry, said the majority: "[t]o 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" (para. 62).
The Minority
Justice Fenlon disagreed. Simply put, "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", and that is otherwise presumed to have full operation (paras. 71-74). Citing R v Josephie from the Nunavut Court of Justice, Justice Fenlon echoed the concern that, because the objective standard “does not permit consideration of the inexperience, lack of education, youth, cultural experience, or any other circumstance of the accused”, it would “criminalize the behaviour of a wide range of citizens who are challenged by mental disabilities and psychological and psychiatric disorders” (paras. 87-89).
Concurring in Result: Mr. Zora was guilty on either standard
Both the majority and minority concurred in the result. To the majority, Mr. Zora displayed a “marked departure from what a reasonable person would have done in the circumstances”, noting that a reasonably prudent person “would have foreseen or appreciated the risk or could have done something to prevent the breach” (para. 68). Justice Fenlon held that Mr. Zora was actually reckless, knowing that his course of conduct created a risk the prohibited result will occur (paras. 95-96).
Commentary
I enjoyed Kate Kehoe’s quip on Twitter: “Justice Fenlon, short form: if it takes the majority 68 paragraphs to determine that the legislative intent is clear, it ain’t clear.” I too am unconvinced that the presumption (that Parliament intends crimes to have a subjective fault element) has been rebutted given the requirement for “clear expressions of a different legislative intent”.
I also have difficulty with the majority’s contention that carefully crafted conditions by the bail court would, in effect, “measure up” the accused at the outset, such that the application of the “inflexible” reasonable person standard would not work injustice. I think that this is asking and expecting too much from bail courts, which are singularly focused on the availability of reasonable bail, having regard to the grounds for detention. Any given release plan signals that reasonable bail was available for the specific offender; they do not ‘deem’ a specific offender as a ‘reasonably prudent person’ merely because the bail court took steps - in writing and known to the accused - to ensure that the conditions did not set up the accused to fail.
Like the minority, I tend to think that allowing the objective fault standard is both unnecessary and potentially unfair.
I agree with Justice Fenlon’s observations that “[t]he 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 […] overstated” and underestimates “the intelligence and common sense of triers of fact” (para. 90). Indeed, given Mr. Zora’s knowledge of his obligation, and his awareness that he would not be able to fulfill this obligation by sleeping in an area of the home where he could not hear the police presence, there was a basis to infer subjective fault in the form of recklessness.
But there will be cases where the “individual characteristics” of the accused are such that it will be unfair to expect normative behaviour and to punish any shortcomings with the loss of liberty (either by way of denial of subsequent bail or through sentencing). This is particularly so where the normative behaviour is calibrated by those in high-functioning positions of power and privilege.
Imagine, for example, that Mr. Zora was a severe alcoholic who, as a result of being passed out in his residence, did not hear the police attend and therefore committed the actus reas of the offence. Assume that the bail court did not impose a full absention condition but instead imposed a condition that the accused not consume any alcohol outside of his residence. Suppose too that this reflected a careful application of the ladder principle in the particular circumstances of this case. A trial judge might well conclude that this self-induced intoxication was not objectively reasonable behaviour.
It may be helpful to consider the law’s disapproval of judicial reasoning that relies on assumptions about human behaviour. This disapproval is well-known in the sexual assault context. See, recently: R v A.B.A., 2019 ONCA 124. Justice Sheilah Martin, just prior to her precipitous rise to the Court of Appeal and then the Supreme Court, thoroughly canvassed this topic as a trial judge R v CMG, 2016 ABQB 368. Such reasoning errors also result in convictions being overturned in other contexts: R v Thompson, 2019 BCCA 1 at paras. 52-59 & R v J.L., 2018 ONCA 756 at paras. 46-47.
After all, what if the trial judge’s calibration of the ‘reasonably prudent accused person released on bail’ more closely resembles the normative assumptions about the behaviour of a highly-educated, able-body and minded individual? Such an objective fault standard might well be insufficiently attuned to the lived experience of those who are profoundly affected by perennial disadvantage.
Moreover, as a matter of policy, we might pause before permitting convictions for “offences against the administration of justice” to be more easily obtained. The underlying conduct is more often than not ‘victimless’, yet such convictions breathlessly enable further and further periods of incarceration. Listen to what former Chief Justice McLachlin had to say (at minute 27) about these types of offences. Indeed, given the relative intensity with which such offences are charged in Canada’s North, we may well observe the remedial goals of s. 718.2(e) of the Criminal Code receded further into the distance.
UPDATE: The Supreme Court will hear this case.