Chaycen Michael Zora v. Her Majesty the Queen

(British Columbia) (Criminal) (By Leave)


Criminal law - Criminal law – Failure to comply with condition of undertaking or recognizance – Elements of the offence – Mens rea – Whether mens rea for offence of failing to comply with condition of undertaking or recognizance should be assessed objectively or subjectively – Criminal Code, R.S.C. 1985, c. C-46, s. 145(3).


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Mr. Zora, appellant, was charged with several drug offences and was granted bail on the condition that he obey a curfew and present himself at his front door within five minutes of a police officer or bail supervisor attending to confirm his compliance with those conditions. On two occasions, Mr. Zora failed to present himself and he was ultimately convicted of breach of recognizance. Mr. Zora appealed his conviction on the basis that the trial judge erred by applying the wrong mens rea standard to the offence. The trial court and a majority of the Court of Appeal dismissed his appeals. They found that while s. 145(3) was ambiguous and that there was conflict in the jurisprudence on the issue, the correct approach was to assess the mens rea of the offence objectively. Fenlon J.A., however, would have applied a subjective standard. In her view, neither the words nor the design of the offence supports a clear legislative intent to displace the presumptive subjective fault element that is the foundational principle of the criminal law.