R v Zora

The Criminal Code defines a number of offences known as administration of justice offences. Such offences concern a 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. 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.[1] One of these conditions was that he would answer the door when the police came to check on him.[2] 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.[3][4] 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,"[5] 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.[6] 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.

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.[7] 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 convicted, but noted that the substance of the offence of failing to comply with bail conditions had not been significantly changed.[8] 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.[9]

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.[10]

• R v Zora, 2020 SCC 14 [Zora SCC]
• R v Zora, 2019 BCCA 9 [Zora CA]

• Full text of Supreme Court of Canada decision available at LexUM and CanLII
• Criminal Code sections 145(4) and 145(5)