The right side of history

We can all use a bit of good news these days. Last week, the Supreme Court of Canada delivered a unanimous decision on R v Zora; a case about bail breaches in which Pivot intervened with help from Vancouver-based criminal defence lawyer David Fai. We were hopeful the Court would agree to hold the government to a higher standard when prosecuting someone for breaching a bail condition – and the Court did  – but we were thrilled to see Canada’s top justices go as far as they did in cautioning against onerous and invasive bail conditions in the first place. Favouring the accused person and eight supporting interveners (including Pivot), R v Zora marks a new path forward for Canada’s broken bail system.

Pivot Staff Lawyer Caitlin Shane and co-counsel David Fai at the Supreme Court of Canada | December 4, 2019

Burdensome bail conditions, and the criminal charges that can follow if those conditions aren’t met, are not only a notorious drain on Canada’s criminal justice system, but they also have dire outcomes for the communities Pivot works alongside. We argued that proving a breach must be a tailored exercise—one that takes into account the lived experience and subjective circumstances of the person accused. Unanimously, the Court agreed.

Read R v Zora in full

Bail conditions: The bad, the worse, and the ugly

So, what are bail conditions?

Bail conditions are Court- or police-imposed rules that must be followed by people who are involved in the criminal justice system, but who typically have not been found guilty of a crime and are not incarcerated. When a person is arrested and released from cells, for instance, they are often required to follow a set of conditions that limit anything from personal behaviors (i.e. a ban on consuming alcohol) to a limit on the geographic areas that person can travel to or within (i.e. a “red zone” area restriction spanning the entire 100-block of East Hastings). When a person does not adhere to their condition(s), they can be charged with a “breach”—an offence under s. 145(3) of the Criminal Code. In other words, a person can be criminalized, and even jailed, for doing something that is not inherently illegal or that may be linked to their livelihood, substance use, or survival. A conviction for breaching a bail condition has significant consequences: it carries a maximum penalty of 2 years imprisonment and can have negative impacts on the accused person’s ability to obtain bail in future.

Pivot has long drawn attention to the harms of bail conditions and how frequently and arbitrarily they are imposed, disproportionately against communities who are over-criminalized, over-incarcerated, and routinely targeted by police. In our 2018 report Project Inclusion, we found that certain bail conditions in particular cause people harm and directly undermine personal and public health and safety. These conditions include:

• Abstinence conditions, which require an individual to immediately and completely stop consuming drugs or alcohol, thus criminalizing people who use drugs or who have addictions;
  
  
• Prohibitions on carrying so-called “drug paraphernalia” (including new and used syringes) thereby criminalizing health care and jeopardizing people’s health; and
  
  
• Area restrictions or “red zones” prohibiting people from accessing the services, communities, and spaces they rely on.

Read Section 2 of Project Inclusion:
Everything Becomes Illegal: How Court-Imposed Conditions Set People up to Fail.

Hearing story after story about the frequency with which these unrealistic conditions are imposed led us to conclude that “conditions are setting some people up to fail, leading them into a cycle of criminalization and incarceration for relatively innocuous behaviours.” We also found that bail conditions can have long-term, serious, and life-threatening consequences, including homelessness or housing precarity and barriers to heath care and service providers. The Supreme Court of Canada accepted many of these findings, and even citied Project Inclusion throughout its decision. The Court found, for instance, that “Offences [for breach] are very common, on the rise, and often involve questionable conditions imposed upon vulnerable and marginalized persons… This Court cannot ignore the current context in which the bail system operates, and in response provides guidance on both the interpretation of s. 145(3) and the imposition of the bail conditions that lead to these charges.”

Bail conditions can have long-term, serious, and life-threatening consequences

Fortunately, we had already had some success in changing federal policy around bail conditions. In April 2019, the Director of Public Prosecutions directed federal Crown prosecutors to minimize detention for breaches of bail conditions, in part by no longer imposing the three above-mentioned conditions on people experiencing addiction.  The Directive cites Project Inclusion as evidence that imprisonment for minor breaches related to substance use can adversely affect people’s tolerance levels for opioid use and put them at increased risk of overdose after release from jail. Despite these improvements, we continue to hear from folks that bail conditions are constant, untenable, and dangerous.

Why the ruling matters

Photo Credit: Supreme Court of Canada | Supreme Court of Canada in Ottawa

Ultimately, R v Zora deals with one seemingly technical provision of the Criminal Code. But the Court’s ruling has both practical and systemic ramifications for our justice system.

The Court’s decision takes direct aim at the harmful feedback loop of criminalization...

In the practical sense, a more stringent process for assessing guilt means fewer people will be unreasonably cycled through the criminal justice system by technicalities. The Court’s decision takes direct aim at the harmful feedback loop of criminalization to which bail conditions and subsequent breaches contribute:

“Conviction under s. 145(3) may lead to the denial of bail or the increased likelihood of more stringent bail conditions for future unrelated offences. This is problematic because breach charges often accumulate quickly… People with addictions, disabilities, or insecure housing may have criminal records with breach convictions in the double digits. 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.”

Someone like Mr. Zora, whose failure to comply with his condition resulted from the lived realities of withdrawal and maintenance therapy, is now entitled to a fairer trial in which those valid circumstances must be properly considered. By requiring courts to assess people’s individual circumstances, the Court’s decision allows people like Mr. Zora to avoid what would otherwise be an unreasonable finding of guilt and the cycle of criminalization that goes with it. This decision serves as necessary protection for the presumption of innocence and the right not be denied bail without just cause.

Importantly, the ruling also demonstrates growing judicial recognition of Canada’s fractured bail system. Pivot has long pointed out the harms of frequent and arbitrary bail conditions, which directly harm our allied communities by exacerbating poverty, undermining public health, and isolating poor and racialized folks. The Court echoed these concerns, and in so doing, reignited the call for widespread revisions to Canada’s bail system. It was well within the Court’s authority to contain its discussion to bail condition breaches, but we are pleased it went several steps further—challenging the unreasonable and discriminatory system that imposes bail conditions in the first place. These are the systems that Pivot and our community work to expose and address on a daily basis. Though Courts all too often fail to engage with underlying causes and social determinants of criminalization, this week, we were happily surprised.

R v Zora: The case and the question

We intervened in Mr. Zora’s case when it reached the Supreme Court of Canada in December 2019. (An intervenor isn’t directly involved in the individual case; instead, an intervenor makes legal arguments about the general issues before the Court.)  Mr. Zora’s case began in 2017 in the Provincial Court of BC, after Mr. Zora was charged with three counts of possession for the purposes of trafficking. While waiting for his trial, he was granted bail with conditions.  These conditions included a requirement that he present himself at his front door within five minutes of a police officer or bail supervisor knocking on the door to check that he was home. When the police knocked and Mr. Zora failed to answer the door, he was charged breaching his conditions. Mr. Zora maintained that he hadn’t breached his conditions because he hadn’t heard the knock; he had retired to bed early, as he was withdrawing from heroin and had recently enrolled in a methadone treatment program. 

Photo Source: Supreme Court of Canada Webcast of R v Zora Hearing | Still of David Fai making Pivot's submissions | December 4, 2019

At the Supreme Court of Canada, the legal decision revolved around one key question: when establishing breaches of bail conditions, to what standard of proof must Crown prosecutors be held? In other words, what circumstances can the Court consider in determining the guilt of an accused person? Two standards of proof were compared:

An objective standard: the life experience and individual context of an accused person cannot be considered in determining guilt. Instead, the Court must ask whether a “reasonable person” would have known they were committing the offense. This “reasonable person”, to which our justice system compares many offenders, has historically been white and able-bodied—the opposite of folks who are typically targeted by police, over-represented in our criminal justice system, and live in the communities Pivot works alongside.

A subjective standard: the accused’s personal circumstances and challenges must be considered in determining guilt. In terms of bail condition breaches, prosecutors would have to prove beyond a reasonable doubt that the accused person breached “knowingly or recklessly.”

If an objective standard is used — as urged by the government —the bare fact that Mr. Zora did not answer the door would be enough for his conviction. The Court would actually be prevented from considering the valid and personal reasons why Mr. Zora failed to answer: namely, that he was experiencing heroin withdrawal and recently enrolled in a methadone treatment program that caused drowsiness. In the case of a subjective standard—favoured by Mr. Zora, Pivot, and other interveners including the Vancouver Area Network of Drug Users and BC Civil Liberties Association—Mr. Zora’s personal circumstances must be considered.

In our view, there is only one suitable standard to limit unreasonable punishment and to protect the fundamental Charter values of liberty and equality: A subjective standard that takes the into account individual circumstances of the accused person. The Court agreed.

Why context matters

A trial for breach of bail condition must take into account the lived experience and subjective circumstances of the person accused. Prosecutors must establish that the accused breached a condition “knowingly or recklessly.” This, the Court found, was Parliament’s clear intention when drafting this offence. Here’s why.

Proving breaches of bail condition must take into account the lived experience and subjective circumstances of the person accused

For starters, a subjective standard is already the presumption for Criminal Code offences, and the Criminal Code shows no clear intention to reverse that presumption here. Moreover, a contextual, subjective standard, complements the individualized process by which bail conditions are imposed in the first place. Bail conditions should be tailored to the unique circumstances of the person and be no more onerous than is necessary to address the particular risks that person might present to the public (for example, violence) or the administration of justice (for example, by not showing up to court). The same should be true in assessments of guilt for breaking those conditions. As the Court said in its decision, an analysis of a person’s unique circumstances “reinforces, mirrors, and respects the individualized approach mandated for the imposition of bail conditions.”

Photo Credit: Caitlin Shane | Supreme Court of Canada 

The Court also highlighted the serious legal and personal consequences that result from a breach conviction: a maximum penalty of 2 years imprisonment, plus negative impacts on the accused person’s ability to obtain bail in future. The severity of punishment is reason enough to take extra precaution when convicting someone. The fact that conditions oftentimes criminalize behavior that is otherwise entirely lawful (i.e. consuming alcohol, visiting a particular neighbourhood or block, etc.) reinforces this point. The potential for serious limitations on the liberty of accused persons (who have yet to be found guilty), warrants a careful assessment. This is the only way, we argued, to maintain the presumption of innocence and the right not to be denied reasonable bail without just cause under s. 11 of the Charter.

Most reassuring to Pivot and our clients was the Court’s recognition that Canada’s bail system is deeply flawed. Given that bail conditions are all too often imposed unnecessarily, unreasonably, inappropriately, and discriminately, it is crucial that establishing a breach be informed by restraint and careful analysis. The Court affirmed that there are systemic problems with invasive and onerous bail conditions:

“In practice, the number of unnecessary and unreasonable bail conditions, and the rising number of breach charges, indicates insufficient individualization of bail conditions … A culture of risk aversion contributes to courts applying excessive conditions…Onerous conditions disproportionately impact vulnerable and marginalized populations, including those living in poverty or with addictions or mental illnesses, and Indigenous people. The presence of too many unnecessary, excessive and onerous conditions provides legislative context for finding no clear intention of Parliament to displace the presumed subjective fault standard for s. 145(3) and illustrates the need for restraint and careful review of bail conditions.”

This decision is a long-awaited step towards bail system reform.

Thank you to the Appellant and his counsel, Sarah Runyon, Garth Barriere, and Michael Sobkin, for bringing this important case forward. And a very special thanks to David Fai for working with us on this case and, as always, for being a longtime ally and friend of Pivot.