breach of bail conditions

Supreme Court of Canada Rules Bail Conditions Must Be Knowingly Violated

Written on Behalf of Affleck & Barrison LLP

In its unanimous decision last week, the Supreme Court of Canada ordered a new trial for Chaycen Michael Zora (“Zora”), who had been convicted of breaching his bail conditions. 

The highest court in Canada concluded that an individual accused of breaching his/her bail conditions must knowingly or recklessly violate those conditions in order to be found guilty of breaching them.

WHAT HAPPENED?

Zora was charged with several drug offences in British Columbia.  He was released on bail and required to abide by twelve conditions.  These conditions included that he keep the peace and be of good behaviour, report to his bail supervisor, not possess any non-prescribed controlled substances, not possess or have a cell phone, obey a curfew and be present at his front door within five minutes if and when the police or bail supervisor appeared to check on him, amongst other conditions. 

In October 2015, police rang Zora’s doorbell on two occasions and he did not answer.  He was therefore charged with two counts of breaching his curfew and two counts of failing to meet the condition of responding to police at his home during a curfew check.

At his trial, Zora was acquitted of charges of breaching curfew as it could not be proven beyond a reasonable doubt that Zora had been outside of his home after curfew.  However, Zora was fined $920 and found guilty of two counts of failing to appear at the door in response to curfew compliance checks.

Zora argued that he did not hear the doorbell as it was difficult to hear it from where he slept.  Furthermore, he testified that he was undergoing methadone treatment, which made him very tired, and was in the process of withdrawal from his heroin addiction.

Zora also testified that he changed where he slept in his home and set up an audio-visual system at his front door to help alert him to further police checks, which ensured that he was complying with his conditions of bail. 

Zora unsuccessfully appealed the trial judge’s decision.  He then proceeded to take his appeal to the Supreme Court of Canada

THE DECISION OF THE SUPREME COURT

Zora appeals his conviction for failing to comply with his bail conditions by not answering the door when police appeared at his residence to ensure that he was complying with his bail conditions.  In failing to do so, Zora had committed the actus reus of the crime (the physical act of the crime).

The Supreme Court of Canada was asked to determine whether Zora had committed the mental element, also known as the mens rea, of the crime, which also must be present, in order to secure a conviction under section 145(3) of the Criminal Code.

It is a criminal offence, under section 145(3) of the Criminal Code, to breach bail.  This crime carries a maximum penalty of two years in prison.  Therefore, an accused may be subject to imprisonment for breaching conditions of their bail even if he/she is not found guilty of any of the original charges. 

In writing on behalf of the Supreme Court, Justice Martin explained what was required to satisfy the mental element of the crime:

I conclude that the Crown is required to prove subjective mens rea and no lesser form of fault will suffice.  Under s.145(3), the Crown must establish that the accused committed the breach knowingly or recklessly.  Nothing in the text or context of s. 145(3) displaces the presumption that Parliament intended to require a subjective mens rea. 

…The realities of the bail system further support Parliament’s intention to require subjective fault to ensure that the individual characteristics of the accused are considered throughout the bail process.

…Not only is this conclusion consistent with the presumption of subjective fault for crimes like s. 145(3), it is supported by its place and purpose in the overall bail system, the serious consequences which flow from its breach, and how the consideration of individual circumstances is the proper focus both for setting conditions and determining the mental element for their breach.

The Supreme Court held that subjective mens rea can be established when the Crown has proven:

  1. The accused had knowledge of the conditions of the bail order, or they were willfully blind to those conditions; and
  2. The accused knowingly (or were willfully blind to the circumstances) failed to act according to their bail conditions despite the knowledge of them; or
  3. The accused recklessly failed to act in accordance with their bail conditions (i.e. perceived an unjustified risk that their conduct would fail to comply with their bail conditions).

In conclusion, the Supreme Court held that subjective fault is required for a conviction under s. 145(3) of the Criminal Code.  The court found that the lower courts erred in law by applying an objective rather than a subjective standard of fault.  The Supreme Court allowed Zora’s appeal, quashed his convictions and ordered a new trial on the two counts of failing to appear at his door. 

If you have been charged with a bail related offence or have any questions regarding your legal rights, please contact the knowledgeable criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947.  Our skilled criminal defence lawyers have significant experience defending a wide range of criminal charges and protecting our client’s rights.  We offer a free consultation and are available 24 hours a day, seven days a week.  Trust our experienced criminal lawyers to handle your defence with diligence, strategy and expertise.

Man Convicted of Sexual Assault Sentenced In Absentia After Fleeing the Country

Written on Behalf of Affleck & Barrison LLP

Moazzam Tariq, a 29-year old Brampton man convicted of sexually assaulting a woman who was too intoxicated to consent to sex, has been sentenced in absentia after fleeing the country to Pakistan.

As we previously blogged about, Tariq was found guilty of sexual assault in October of this year, based in large part on shocking surveillance videos. He was expected at his sentencing hearing earlier this month, but failed to appear.

Not the First Time the Offender Has Fled the Country

This is the second time that Tariq has left Canada in order to avoid a jail sentence. Due to an apparent failure to update the Canadian Police Information Centre (CPIC) (the national database of criminal records), both Toronto police and prosecutors were unaware that Tariq had previously been charged with dangerous driving causing bodily harm in January 2010, and that he subsequently fled to Pakistan, while on bail, with his father as surety.

Tariq was re-arrested entering Canada in September 2011, at which point he had informed officers that he had left the country to avoid jail on the outstanding charges, and spent the year in Pakistan and various European countries. He was charged with failure to appear as well as robbery, and was released on bail two days later to his father and another surety for $25,000. In July 2012 he pleaded guilty to dangerous driving. All other charges were withdrawn. Tariq received a sentence of 90 days in jail (to be served on weekend), as well as 18 months’ probation.

Ontario Court Justice Mara Greene stated that “had we known his history he would have been put in custody immediately” and would likely not have been granted bail on the sexual assault charge. Justice Greene called Tariq’s escape a “foregone conclusion”.

After Tariq’s sexual assault conviction earlier this year, his father was asked what had happened when he had previously acted as Tariq’s surety following the dangerous driving charges. The father did not disclose that his son had fled the jurisdiction then, telling the court only that Tariq had committed a minor breach of his bail conditions because he lived within 500 meters of a school.

Offender Had Been Required to Surrender His Passport

At the time Tariq fled the country this time, he was on $10,000 bail, was required to live with his father in Brampton, and had to be home between the hours of 10pm and 6am. Upon conviction, he had also been required to surrender his passport. Allegedly, Tariq provided authorities with an expired passport that had been forged to appear current. He then used his valid Pakistani passport to leave Canada on November 18th through Montreal, stopping in Qatar, before ultimately ending up in Pakistan.

Prosecutors and the Court initially learned that Tariq was missing when he failed to show up at the sentencing hearing. However, he had been reported to have breached his bail on November 24th, after his father removed himself as surety, telling police that Tariq had gone to Vancouver on business and then subsequently stopped answering phone calls. A nationwide warrant for Tariq’s arrest was subsequently issued on December 5th, at which point Tariq had already been out of the country for two weeks.

At the time of the sentencing hearing, prosecutor Nathan Kruger told Justice Green that “Your Honour can make a reasonable inference that [Tariq] will not be returning and will not be found prior to Dec. 19”. Greene stated that communication between jurisdictions “clearly needs to be improved” adding that:

I have found Mr. Tariq guilty of a serious personal injury offence that affects the core integrity of the human body. And the potential risk to others if he remains in the community, given his disregard for the legal system is really concerning…[i]f there had been better communication mechanisms in place, if CPIC was updated properly we would not be in this position.

Following the initial sentencing hearing, Tariq’s defense lawyer was removed as his counsel at her request.

The Sentence

On December 19th, Tariq was sentenced to two years and nine months in prison.

At the hearing, Justice Greene acknowledged that it was unusual to proceed with sentencing in the absence of the offender, however, in this case it was necessary to allow the victim to move forward with her life.

Justice Greene took the victim’s impact statement into account when setting the sentence, acknowledging the immense trauma the victim was suffering and stating:

It is difficult to imagine that feeling of stopping to be who you are because of someone else’s callous violence towards you…

Prosecutors had sought a three-year sentence. They did not ask the Justice to consider Tariq’s flight as part of the sentence, telling the Court that if he was found and returned to Canada the issue of his flight would be dealt with separately.

Tariq’s father is expected to have a hearing next year over whether or not he should forfeit the $10,000 he provided for bail.

If you are facing sexual assault or related charges, or have questions about bail, contact the skilled defense lawyers at Affleck Barrison online or at 905 404 1947. For your convenience, we offer 24-hour phone services and a free confidential consultation. We are available when you need us most.