Jan 09, 2021
Recently, the Supreme Court of Canada issued a landmark decision relating to the imposition of conditions on release (i.e., bail conditions) and breaches of those conditions.
Generally, to be convicted and found guilty of a criminal offence a person must commit a wrongful act – the actus reus – and must have the requisite guilty mind to commit that wrongful act – the mens rea. However, the law recognizes that there are two types of mens rea – subjective and objective.
Subjective mens rea is where a person is responsible for committing the crime if they intended, knew, or were aware of what might happen because of their wrongful act.
Objective mens rea is where a person did not mean to do anything wrong but is nevertheless responsible for committing the wrongful act. In other words, objective mens rea looks at what an ordinary or reasonable member of society would have done in the same situation.
Bail Conditions in Canada: R. v. Zora Explained
Prior to the decision in Zora, courts throughout Canada disagreed on the mens rea to apply to breaches of bail conditions. However, in Zora, the SCC confirmed that the mens rea to be applied for breaching a bail condition was subjective. This means that the Court, in deciding the guilt or innocence of the accused person alleged to have breached a bail condition, must look at what that person actually knew or was aware might happen as a result of committing the breach.
In addition to resolving the issue of objective versus subjective mens rea for breaches of bail conditions, the Supreme Court took the opportunity to revisit the purpose and imposition of bail conditions. For decades prosecutors would seek, and Judges would consider and often impose many conditions to an accused’s person release or bail. The Supreme Court of Canada in Zora found this was the wrong practice and has transformed this unjust tradition. Rather, The Supreme Court found that normally there should not be any conditions imposed on bail. There are many reasons for this including an accused’s presumption of innocence, unnecessary restrictions on a person’s liberty and the impact of pre-trial conditions on vulnerable populations. In other words, the default form of bail for most crimes is release on an undertaking. Additional bail conditions can only be imposed if they are clearly articulated, minimal in number, necessary, reasonable, the least onerous in the circumstances, and linked to the risks regarding the grounds for detention under section 515 of the Criminal Code. These include securing the accused ‘s attendance in court, ensuring the protection or safety of the public and maintaining confidence in the administration of justice.
The Zora case has changed things. Bail conditions including no contact, no go, reporting, no alcohol, curfew and any other conditions must be justified and necessary.
For more information on allegations of breaching bail conditions or for assistance in changing bail conditions, contact Filkow Law to speak with one of our experienced lawyers.
Dec 12, 2020
RoadSafetyBC issues driving prohibitions to both new and experienced drivers who receive tickets on their driving record. In McEachern v. British Columbia (Superintendent of Motor Vehicles), 2019 BCCA 195, the BC Court of Appeal confirmed that RoadSafetyBC can issue driving prohibitions if it determines your driving record is 1) unsatisfactory, and that 2) it would be in the public interest to issue a prohibition. The public interest includes deterring poor driving behaviour. RoadSafetyBC alone decides these factors and is afforded significant deference in those determinations.
Driving prohibitions in BC: Why you should dispute your tickets
If you receive a ticket, you should consider disputing it for a number of reasons, not least of which is that you can be prohibited from driving for receiving even a single ticket as a new driver, or as few as 2 tickets as an experienced driver. If you pay your ticket, fail to dispute your ticket, miss your hearing, plead guilty, or are convicted of the offence, the violation will go on your record, and will be used against you by RoadSafetyBC in deciding whether to issue a prohibition. Also, an entry on a driving record is permanent.
What happens when you receive a driving prohibition?
If RoadSafetyBC decides to prohibit you, they will send you a Notice of Intent to Prohibit by mail to the address on file for you. You should make sure you that you keep your address updated with ICBC.
A Notice of Intent to Prohibit advises you of RoadSafetyBC’s intention to prohibit you from driving for a period of time. You are given 21 days from the date on the Notice of Intent to Prohibit to prepare your submission as to why a driving prohibition should be revoked or why it should be shortened. If you provide submission within the 21-day timeline, your prohibition will be put on hold until a determination is made on your submissions.
Notice of driving prohibition in BC
A Notice of Prohibition advises you that RoadSafetyBC has prohibited you from driving. You will receive a Notice of Prohibition if you fail to respond to a Notice of Intent to Prohibit that was sent to you, if you are serving another prohibition already, or you are on probation. You can apply to review a Notice of Prohibition. However, unlike with a Notice of Intent to Prohibit, the prohibition will not be placed on hold, meaning you will serve the driving prohibition during RoadSafetyBC’s review of your submissions.
If you do not acknowledge your Notice of Prohibition, a police officer can serve you with the prohibition at the roadside. Generally, you will be permitted to drive home, but thereafter, your prohibition will commence, and you cannot drive for any reason until your prohibition ends.
In addition to reviewing your prohibition with RoadSafetyBC, you can seek judicial review of RoadSafetyBC’s decision to prohibit you by appealing to the BC Supreme Court. However, RoadSafetyBC has new policies and guidelines. The updated Driver Improvement Program Guidelines change the timelines for appealing your driving prohibition to the BC Supreme Court.
Call Filkow Law if you receive a driving prohibition
Driving prohibitions can obviously have major effects. If you receive a Notice of Intent to Prohibit, or a Notice of Prohibition in BC, or any driving prohibition, you are welcome to call our office for advice and representation.