R v Zora – 2019 BCCA 9 (Stromberg-Stein):

[1] Chaycen Michael Zora appeals his convictions for breaching his recognizance by failing to present himself at his door for two curfew compliance checks contrary to s. 145(3) of the Criminal Code, R.S.C., 1985, c. C-46. The sole issue is whether s. 145(3) imports an objective standard of mens rea.

[2] In my view, the duty-based nature of s. 145(3), combined with the risk-based nature of bail provisions, support Parliament’s intention for the application of an objective fault standard. This is consistent with the plain language, context and purpose of the offence. An objective fault standard requires proof of a marked departure from what a reasonable person in the same situation would do. If 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. This is sufficient to ensure only the morally blameworthy will be convicted.

|

[4] On October 9, 2015, Friday of the Thanksgiving long weekend, a police officer went to Mr. Zora’s residence at 10:30 p.m., two-and-a-half hours after the commencement of his curfew. The officer rang the doorbell three times and knocked loudly on the front door with his fist. There was no response. He waited for more than five minutes. There was no activity at the residence, no lights were on, and he heard no dogs barking.

[5] On October 11, 2015, another police officer went to Mr. Zora’s residence. He saw a sign on the door that read “use the doorbell,” which he did. He waited for more than five minutes and observed no activity at the residence.

|

[9] Mr. Zora explained that he may have been sleeping during the two police checks. He said it was difficult, if not impossible, to hear the doorbell from where he slept. He was undergoing methadone treatment and withdrawal from his heroin addiction, which made him sleepy, so he often went to bed earlier than usual.

|

[66] In my view, the indicators of Parliament’s intent regarding the fault element demonstrate that s. 145(3) is a duty-based offence that attracts an objective standard of mens rea. Section 145(3) recognizes that persons who have been released are under a legal duty to comply with the conditions of their release; it therefore creates legal duties respecting particular persons in particular circumstances and is aimed at establishing a uniform minimum level of care undertaken by those to whom it applies. The duty imposed is a societal, and not a personal, standard of conduct. The section ensures that those granted judicial interim release by means of an undertaking or recognizance made to court will comply with the terms and conditions. This ensures proper functioning of the criminal justice system generally and the bail system specifically.

[67] A review of the language, breadth, context and purpose of s. 145(3), as well as the gravity of the crime and social stigma attached, confirms the offence is duty-based, requiring objective mens rea to establish the fault element of the offence.

[68] In my view, the trial judge’s findings of fact, which are not disputed, support the convictions in this case because Mr. Zora’s failure to present himself at his door for two curfew compliance checks demonstrates a marked departure from what a reasonable person would have done in the circumstances. A reasonably prudent person in the circumstances would have foreseen or appreciated the risk or could have done something to prevent the breach. His explanation does not amount to a lawful excuse for the breaches.

[69] I would dismiss the appeal.