A subjective standard
To be found guilty of breaching bail conditions, accused people must know they are violating them, the Supreme Court of Canada has ruled.
In R. v. Zora, a unanimous decision authored by Justice Sheilagh Martin, the top court held in that the mental element for the crime of breaching a bail condition, or similar offences under the Criminal Code, is to be assessed subjectively. There is no reason to suggest that Parliament intended for it to be otherwise, it added.
"…[T]his presumption of subjective fault reflects the underlying value in criminal law that the "morally innocent should not be punished," the court wrote while serving a reminder that restraint and review are essential requirements in crafting bail conditions.
"A bail condition must be reasonable," Justice Martin wrote, and will be considered as such only "if they realistically can and will be met by the accused." The condition should therefore be "clear, minimally intrusive, and proportionate to any risk."
Having already endorsed principles for reasonable bail in its 2017 Antic ruling (also unanimous), the Supreme Court found itself again reminding all participants involved in the bail system that the accused is presumed innocent; that they should act with restraint; and that bail conditions must also be no more onerous than is necessary to secure the accused's attendance in court, ensure the protection or safety of the public, or maintain confidence in the administration of justice.
Ultimately, the Supreme Court reminds us, bail conditions must be tailored to the individual and all involved in the bail system must act with restraint.
"Bail conditions may be easy to list, but hard to live," Justice Martin wrote. "The setting of bail is an individualized process and there is no place for standard, routine, or boilerplate conditions, whether the bail is contested or is the product of consent."
The court also appeared to consider the matter of excessive bail conditions as one that is critical to access to justice, noting that "onerous conditions disproportionately impact vulnerable and marginalized populations."
"Convictions for failure to comply offences can therefore lead to a vicious cycle where increasingly numerous and onerous conditions of bail are imposed upon conviction, which will be harder to comply with, leading to the accused accumulating more breach charges, and ever more restrictive conditions of bail or, eventually, pre-trial detention."