1. Section 145(4) — Failure to Comply with Undertaking
Failing to comply with bail conditions is made an offence by s. 145(4) of the Criminal Code, which states that:
“Every person is guilty of an indictable offence or criminal charge and liable for imprisonment for a term of not more than two years or an offence punishable on summary conviction who (a) is at large on an undertaking and who fails, without lawful excuse, to comply with a condition of that undertaking.”
The Actus Reus
The actus reus of s. 145(4) is that the accused “knowingly and voluntarily performed or failed to perform the act or omission” set out in their bail conditions.
The Mens Rea
It was recently decided that s. 145(4) has a subjective fault element. In order to meet this subjective mens rea, the Crown must establish two things:
First, the accused must have had “knowledge of the conditions of their bail order or were wilfully blind to those conditions.”
Secondly, they must have “knowingly failed to act according to their bail conditions.” This entails either knowledge “of the circumstances requiring them to comply with the conditions of their order”, or that they were “wilfully blind to those circumstances”, and still failed to comply with their bail conditions despite that knowledge.
2. The Defence of Mistake of Fact
Because subjective mens rea requires actual knowledge or recklessness, the defence of honest yet mistaken belief of fact is available – also known as the mistake of fact defence. The belief does not need to be reasonable, but only honestly held. Due to this, if an accused holds an honest, yet mistaken belief about the conditions of their bail order, they cannot be found liable for breaching it. One cannot have “knowingly failed to act according to their bail conditions” where they lack knowledge of those conditions. The position taken in R. v. Smith, finding that one who misheard and did not review the terms of his recognizance was not guilty of “knowingly [breaching] his conditions” or being wilfully blind was recently affirmed by the Supreme Court of Canada. As such, I believe that an honest belief that one’s bail conditions were varied could constitute a valid mistaken belief as well.
This is further supported in R. v. Docherty, where it was found that one could not have “willfully breached his probation order through the commission of a criminal offence unless he knew that what he did constituted a criminal offence .”
This leads me to believe that an accused has not “knowingly” failed to act according to their bail conditions where they believe that their bail order was changed such that their actions did not constitute a violation of their bail order.
3. Wilful Blindness and Recklessness
Whenever knowledge is a required component of mens rea, wilful blindness may substitute for actual knowledge.
However, what is needed is real suspicion from the accused, and an intentional failure to inquire further despite that suspicion. If this “deliberate” ignorance is absent, wilful blindness will not substitute for actual knowledge .
Thus, in the situation at hand, as long as the accused’s suspicions were not aroused to the point where he saw the need for further inquiry and deliberately declined to do so, I do not believe that he would be found wilfully blind as to substitute for actual knowledge to meet the subjective mens rea requirement for s. 145(4).
The second mens rea component for s. 145(4) (knowingly failing to comply with bail conditions) can be met by showing that the accused was reckless in breaching the conditions. This requires that the accused be aware of a danger that their conduct could “bring about the result prohibited by the criminal law”, yet persists on their course of action despite awareness of that risk.
For this to be the case, there must be an awareness of the risk. If the accused honestly believed that the conduct engaged in was not prohibited by their bail order, they would not be aware of a risk of breaching the order.
Further, knowledge of merely any risk of non-compliance is not sufficient. What is needed is that the accused is “aware that their continued conduct creates a substantial and unjustified risk of non-compliance with their bail conditions.”
Where an accused believed their bail order was legally altered to allow the conduct they engaged in, I would find it hard to believe that they could be aware of an unjustified risk of noncompliance. The fact that they believed the bail order was altered would lead me to believe that they honestly believed that they were justified in engaging in the conduct in question, and thus lack the mens rea needed for s. 145(4).
This piece was written originally by Dilan Brar. Currently, Dilan Brar is a second-year law student at the University of Toronto.
- 1 R v Zora,  SCC 14 at 109.
- 2 Ibid at para 4.
- 3 Ibid at 109.
- 4 R v Pappajohn,  2 S.C.R. 120, 1980 CarswellBC 446 at 56-60.
- 5 Supra note 1 at 114.
- 6 R v Docherty,  2 S.C.R. 941,  S.C.J. No. 105 at para 29 (“[T]he mens rea of s. 666(1) requires that an accused intend to breach his probation order. This requires at a minimum that the accused knew he was bound by the probation order and that there was a term in it which would be breached by his proposed conduct”).
- 7 R v Lagace,  O.J. No. 4328, 181 C.C.C. (3d) 12.
- 8 Ibid.
- 9 R v Withworth, 2013 ONSC 7412,  O.J. No. 5708 at para 13.
- 10 Supra note 1 at 116.
- 11 Ibid at 118.