This week’s top three summaries: R v Zora, 2020 SCC 14, R v Santana, 2020 ONCA 365, and R v Johnson, 2020 ONSC 3672.

R v Zora (SCC)

[June 18/20] Offences: Breach of Bail - Terms and Conditions of Bail - 2020 SCC 14 [Reasons by Martin J. with all others concurring: Wagner C.J., Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe and Kasirer JJ.]

AUTHOR’S NOTE: The SCC for, the first time, has dealt with the offence of breaching a recognizance. The outcome is excellent on the mens rea front. Those living in provinces where the law was unsettled or set a lower bar, have lived under legal regimes that punish people for doing things that are normally not criminal (but for bail) and which they may not have intentionally set out to do as a breach of a court order. The SCC has recognized that the minimum mental element for such an offence is subjective intent.  One has to intentionally set out to violate the condition or undertake behaviour one knows is substantially likely to breach to the condition.

However, Justice Martin did not stop there.  Instead, the Court took the opportunity to reinforce the ladder principle and the principle of restraint in imposing bail conditions on people.  Conditions that are not significantly connected to the purposes of bail (ie. primary, secondary, tertiary grounds) have no place in a bail order.  Judicial officials, Crown counsel, and Defence counsel have a duty to review and revisit conditions to minimize them to those necessary.

Further, the SCC lists a number of conditions that are particularly suspect and should be treated with caution including keeping the peace, ensuring young people attend school as a condition, and prohibitions on consumption of alcohol for addicted persons.

Finally, the Court focuses the attention of the justice system on the fact that the most vulnerable and marginalized in our society are the most likely to receive stricter conditions of release and be the least likely to be able to comply with them. A cycle of criminalization occurs that the SCC is trying to dissuade.  New criminal code provisions focusing the plight of Indigenous Canadians and other marginalized groups give licence to the Courts to ease up on conditions that are contributing to the problem. 


[2] Parliament made it a separate criminal offence to breach bail conditions under s. 145(3) of the Code. 3 This is a crime against the administration of justice and carries a maximum penalty of two years’ imprisonment. Accused persons may therefore be subject to imprisonment under s. 145(3) if they breach a condition of their bail, even if they are never ultimately convicted of any of the crimes for which they were initially charged. In many cases, an accused person faces criminal sanctions for conduct which, but for the stipulated bail condition, would be a lawful exercise of personal freedom. As the gravamen of the offence is a failure to comply with a court order, there is often no victim, no violence, or no direct harm to the public or property.

[3] The appellant, Mr. Zora, appeals his convictions under s. 145(3) for twice failing to comply with his bail condition to answer the door when police went to his residence to check that he was complying with his bail conditions. He committed the guilty act, or the actus reus, by failing to answer the door when police attended. We are asked to determine what fault or mental element the Crown must prove to secure a conviction under s. 145(3): is the mens rea for this offence to be assessed on a subjective or objective standard?

[4] 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. Further, this intention is supported by this Court’s jurisprudence on the interpretation of the breach of probation offence, the consequences of charges and convictions under s. 145(3), the role of s. 145(3) within the constitutional and legislative scheme of bail, and the practical operation of the bail system. A subjective mens rea standard for breach under s. 145(3), like Parliament’s recent amendments to the bail scheme, keeps the focus on the individual accused, where it belongs.

[5] ... Offences under s. 145(3) are very common, on the rise, and often involve questionable conditions imposed upon vulnerable and marginalized persons. Parliament has recently acted to address how numerous and onerous bail conditions interact with s. 145(3) to create a cycle of incarceration, especially among the most vulnerable in our population. 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.

[6] All those involved in the bail system are to be guided by the principles of restraint and review when imposing or enforcing bail conditions.... Before transforming bail conditions into personal sources of potential criminal liability, judicial officials should be alive to possible problems with the conditions. Requiring subjective mens rea to affix criminal liability under s. 145(3) reflects the principles of restraint and review and mirrors the individualized approach mandated for the imposition of bail conditions.

Legislative Scheme

[24] The jurisprudence mandates that judicial officials respect the ladder principle, meaning that they must consider release with fewer and less onerous conditions before release on more onerous ones (see R. v. Schab, 2016 YKTC 69, 35 C.R. (7th) 48, at para. 29; R. v. Prychitko, 2010 ABQB 563, 618 A.R. 146, at para. 14). The case law is clear that non-enumerated conditions imposed under s. 515(4)(f), like enumerated conditions, must be minimal, necessary, reasonable, the least onerous in the circumstances, and sufficiently connected to a risk listed in s. 515(10) (Antic, at para. 67(j); see also R. v. Penunsi, 2019 SCC 39, at paras. 78-80). The ladder principle applies to conditions of release just as it applies to forms of release. There is a link between the ladder principle and the number and content of bail conditions. Without a restrained approach to bail conditions, a less onerous form of bail, such as an undertaking with conditions, can become just as or more onerous than other steps up the bail ladder or, in some cases, even more restrictive than conditional sentence and probation orders issued after conviction (R. v. McCormack, 2014 ONSC 7123, at para. 23(CanLII); R. v. Burdon, 2010 ABCA 171, 487 A.R. 220, at para. 8).

[25]Only conditions that are specifically tailored to the individual circumstances of the accused can meet these criteria. Bail conditions are thus intended to be particularized standards of behavior designed to curtail statutorily identified risks posed by a particular person. They are to be imposed with restraint not only because they limit the liberty of someone who is presumed innocent of the underlying offence, but because the effect of s. 145(3) is often to criminalize behaviour that would otherwise be lawful. In effect, each imposed bail condition creates a new source of potential criminal liability personal to that individual accused. 

[26] ... Section 493.1 now explicitly sets out a “principle of restraint” for any interim release decisions, requiring a peace officer or judicial official to “give primary consideration” to imposing release on the “least onerous conditions that are appropriate in the circumstances, including conditions that are reasonably practicable for the accused to comply with.” Section 493.2 requires judicial officials making bail decisions to give particular attention to the circumstances of accused persons who are Indigenous or who belong to a vulnerable population that is overrepresented in the criminal justice system and disadvantaged in obtaining release.

Mens Rea for Breach of Bail

[32] Determining the mens rea of s. 145(3) involves an exercise in statutory interpretation to discern the fault standard intended by Parliament. A key part of the context in interpreting s. 145(3) is the long-standing presumption that Parliament intends crimes to have a subjective fault element (R. v. A.D.H., 2013 SCC 28, [2013] 2 S.C.R. 269, at para. 23, citing R. v. Sault Ste. Marie, 1978 CanLII 11 (SCC), [1978] 2 S.C.R. 1299, at pp. 1303 and 1309-10, per Dickson J.). 

[33] As described by this Court in A.D.H., this presumption of subjective fault reflects the underlying value in criminal law that the “morally innocent should not be punished” (A.D.H., at para. 27). This starting point is not an absolute rule, but rather captures what was assumed to be present in the mind of Parliament when enacting the provision (para. 26). The presumption of subjective fault will only be overridden by “clear expressions of a different legislative intent” (paras. 27-29). Courts must read the words of the statute in their entire context, in their grammatical and ordinary sense harmoniously with the scheme and objects of the statute to discern whether there is a clear legislative intention to overturn the presumption of subjective fault (at paras. 19-21, citing Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at p. 41 (quoting E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87)). If a criminal offence in the Code is ambiguous as to the mens rea, then the presumption of subjective fault has not been displaced.

[35] In my view, they do not. Not only is there no reason in the text or context of the offence to suggest that Parliament intended to depart from requiring subjective fault, I conclude that Parliament intended for subjective fault to apply to s. 145(3). The wording in s. 145(3) is neutral and does not create a duty-based offence with objective mens rea as defined in A.D.H. All the other relevant factors support a subjective fault element. This Court has previously decided that subjective intent is required for the similar offence of breach of probation. Further, the legislative history, context, and purpose of s. 145(3) within the larger legislative scheme, as well as the significant consequences associated with a charge or conviction under s. 145(3), call for a subjective mens rea element....

[50] This Court’s jurisprudence requiring subjective mens rea for the breach of probation offence further supports a subjective mens rea for the failure to comply offence. The offences of breach of probation (s. 733.1) and failure to comply with bail conditions (s. 145(3)) are similar offences, which both arise from an accused’s breach of conditions set out in a court order. In R. v. Docherty, 1989 CanLII 45 (SCC), [1989] 2 S.C.R. 941, the Court determined that a subjective mens rea was required for the breach of probation offence. That offence used the words “wilfully” and “refuses”, which reinforced the presumption of subjective fault, and are not in s. 145(3). However, even after the word “wilfully” was removed from the current breach of probation offence, most courts continue to interpret the offence to require subjective mens rea, based on this Court’s reasoning in Docherty and the fact that the removal of the word “wilfully” does not on its own indicate an intent to create an objective mens rea offence (see, e.g., R. v. Eby, 2007 ABPC 81, 77 Alta. L.R. (4th) 149; R. v. Bingley, 2008 BCPC 245, at para. 18 (CanLII); R. v. Laferrière, 2013 QCCA 944, at paras. 82-83; R. v. John, 2015 ONSC 2040, at para. 16 (CanLII); contra, R. v. Bremmer, 2006 ABPC 93, at paras. 3-7 (CanLII)).

[56] .... A Department of Justice study of closed cases from 2008 found that 43.9 percent of accused persons with a prior history of convictions for s. 145 offences were denied bail, which is a remand rate significantly higher than accused persons with no such history, and even slightly higher than the remand rate for accused persons who were previously convicted of violent offences (39.9 percent) or sexual offences (39.5 percent): K. Beattie, A. Solecki and K. E. Morton Bourgon, Police and Judicial Detention and Release Characteristics: Data from the Justice Effectiveness Study (2013), at pp. 17-18). Thus, 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.

[57] This is problematic because breach charges often accumulate quickly: Mr. Zora’s failure to answer a door twice on one weekend resulted in four separate charges under s. 145(3). 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....

[70] This legislative framework indicates that Parliament intended for the Crown to primarily use bail review and revocation, rather than criminal charges, to manage accused persons who cannot or will not comply with their bail conditions, especially when those bail conditions address conduct that would not otherwise be criminal. Of course, different considerations apply for a breach of condition that involves conduct that is otherwise criminal or which harms or threatens people, for example, where an accused breaches a no-communication condition by threatening or intimidating a victim. In those circumstances, criminal charges may be justified. Parliament has now created a judicial referral hearing process under s. 523.1 to allow prosecutors to divert charges under s. 145(3) that involve no physical or emotional harm to a victim, property damage, or economic loss. This further emphasizes that prosecutions and conviction under s. 145(3) should be a last resort measure to primarily address harmful intentional breaches of bail conditions where the remedies available through bail review and revocation would not be sufficient. 

Setting Bail Conditions and Their Breach under s.145(3)

[79] A third reality of bail is that onerous conditions disproportionately impact vulnerable and marginalized populations (CCLA Report at pp. 72-79). Those living in poverty or with addictions or mental illnesses often struggle to meet conditions by which they cannot reasonably abide (see, e.g., Schab, at paras. 24-5; Omeasoo, at paras. 33 and 37; R. v. Coombs, 2004 ABQB 621, 369 A.R. 215, at para. 8;.... Indigenous people, overrepresented in the criminal justice system, are also disproportionately affected by unnecessary and unreasonable bail conditions and resulting breach charges (see, e.g., R. v. Murphy, 2017 YKSC 34, at paras. 31-34 (CanLII); Omeasoo, at para. 44;....

[86] Moreover, bail conditions must be sufficiently linked to the defined statutory risks. They should be as narrowly defined as possible to meet their objective of addressing the risks under s. 515(10) (R. v. D.A., 2014 ONSC 2166, [2014] O.J. No. 2059, at paras. 14-17 (QL); R. v. Pammett, 2014 ONSC 5597, at paras. 10-12 (CanLII); R. v. Clarke, [2000] O.J. No. 5738 (Sup. Ct.), at paras. 9 and 12 (QL); K. (R.), at paras. 14-19; J.A.D., at paras. 9 and 11). As with the setting of probation conditions, the level of connection between a non-enumerated condition and a risk under s. 515(10) should be comparable to the clear linkages between the enumerated conditions in s. 515(4) and the risks under s. 515(10) (R. v. Shoker, 2006 SCC 44, [2006] 2 S.C.R. 39, at paras. 13-14). This Court in Penunsi recently emphasized this in relation to conditions on peace bonds: 

Where the condition is not demonstrably connected to the alleged fear, it may merely set the defendant up for breach . . . Any condition should not be so onerous as effectively to constitute a detention order by setting the defendant up to fail. [Citations omitted; para. 80.]

[87] A bail condition must be reasonable. As with probation conditions, bail conditions cannot contravene federal or provincial legislation or the Charter (Shoker, at para. 14). The enumerated bail conditions in s. 515(4) to (4.2) help inform the extent of discretion a judicial official has in imposing other reasonable non-enumerated bail conditions (Shoker, at para. 14). Conditions must be clear, minimally intrusive, and proportionate to any risk. Conditions will also only be reasonable if they realistically can and will be met by the accused, as “[r]equiring the accused to perform the impossible is simply another means of denying judicial interim release” by setting them up to fail, as well as adding the risk that the accused will be criminally charged for failing to comply (Omeasoo, at paras. 33 and 37-38; see also Penunsi, at para. 80).....

[89] In summary, to ensure the principles of restraint and review are firmly grounded in how people think about appropriate bail conditions, these questions may help structure the analysis:

  • If released without conditions, would the accused pose any specific statutory risks that justify imposing any bail conditions? If the accused is released without conditions, are they at risk of failing to attend their court date, harming public safety and protection, or reducing confidence in the administration of justice?
  • Is this condition necessary? If this condition was not imposed, would that create a risk of the accused absconding, harm to public protection and safety, or loss of confidence in the administration of justice which would prevent the court from releasing the accused on an undertaking without conditions?
  • Is this condition reasonable? Is the condition clear and proportional to the risk posed by the accused? Can the accused be expected to meet this condition safely and reasonably? Based on what is known of the accused, is it likely that their living situation, addiction, disability, or illness will make them unable to fulfill this condition?
  • Is this condition sufficiently linked to the grounds of detention under s. 515(10)(c)? Is it narrowly focussed on addressing that specific risk posed by the accused’s release?
  •  What is the cumulative effect of all the conditions? Taken together, are they the fewest and least onerous conditions required in the circumstances?

[90] When considering the appropriateness of bail conditions, the criminal offence created by s. 145(3) not only counsels restraint and review, but provides an additional frame of reference which incorporates considerations of proportionality into the assessment. Given the direct relationship between imposition and breach, the assessments of necessity and reasonableness discussed in Antic should also take into account that failures to comply with imposed conditions become separate crimes against the administration of justice. Accordingly, the question becomes: is it necessary and reasonable to impose this condition as a personal source of potential criminal liability knowing that a breach may result in a deprivation of liberty because of a charge or conviction under s. 145(3)? In short, when considering whether a proposed condition meets a demonstrated and specific risk, is it proportionate that a breach of this condition would be a criminal offence or become a reason to revoke the bail?

Scrutiny of Specific Conditions Necessary

[91] .... The discussion of specific conditions below demonstrates how these common types of conditions must be scrutinized.

[92] First, judicial officials should be wary of conditions that may be directed to symptoms of mental illness. This includes alcohol and drug abstinence conditions for an accused with an alcohol or drug addiction. If an accused cannot possibly abide by such a condition, then it will not be reasonable (Penunsi, at para. 80; Omeasoo, at para. 37-38). In addition, rehabilitating or treating an accused’s addiction or other illness is not an appropriate purpose for a bail condition — a condition will only be appropriate if it is necessary to address the accused’s specific risks. Subjecting individuals who are presumed innocent to abstention conditions may effectively punish them for what are recognized health concerns, “if that individual is suffering from an alcohol addiction, an absolute abstention may present substantial risk to the health and well-being of that person” and even “give rise to potentially lethal withdrawal effects” (R. v. Denny, 2015 NSPC 49, 364 N.S.R. (2d) 49, at paras. 14-15; see also John Howard Society of Ontario, at pp. 12-13). If an abstinence condition is necessary, the condition must be fine-tuned to target the actual risk to public safety, for example, by prohibiting the accused from drinking alcohol outside of their home if their alleged offences occurred when they were drunk outside of their house (Omeasoo, at para. 42). Those seeking and imposing bail conditions should also be aware that an accused’s substance use disorder, or any other mental illness, may yet be undiagnosed. And, where necessary, liberal use should be made of the bail review and variation provisions under ss. 520, 521 and 523 to accommodate these circumstances. Bail is a dynamic, ongoing assessment, a joint enterprise among all parties involved to craft the most reasonable and least onerous set of conditions, even as circumstances evolve.

[93] ... As described by Cheryl Webster in her report for the Department of Justice, “conditions such as ‘attend school’ or ‘attend counselling/treatment’ may serve broader social welfare objectives but are [usually] unrelated to the actual offence alleged to have been committed” (Webster Report, at p. 7). There may be exceptions, such as in S.K., where the judge found that an “attend school” condition was sufficiently linked to the accused’s risks. However, even if a condition seems sufficiently linked to an accused’s risks, the question is also whether the condition is proportional: imposing such conditions means that the accused could be convicted of a criminal offence for skipping a day of school.

[94] Third, the condition to “keep the peace and be of good behaviour” is a required condition in probation orders, conditional sentence orders, and peace bonds, but is not a required condition for bail (S.K., at para. 39). It should be rigorously reviewed when proposed as a condition of bail. This generic condition is usually understood as prohibiting the accused from breaching the peace or violating any federal, provincial, or municipal statute (R. v. Grey (1993), 19 C.R. (4th) 363 (Ont. C.J.); R. v. D.R.(1999), 1999 CanLII 13903 (NL CA), 178 Nfld. & P.E.I.R. 200 (Nfld. C.A.); R. v. Gosai, [2002] O.J. No. 359 (Sup. Ct.), at paras. 18-28 (QL)). Because a breach of a bail condition is a criminal offence, this condition “adds a new layer of sanction, not just to criminal behavior, but to everything from violation of speed limit regulations on federal lands, such as airports, to violation of dog leashing by-laws of a municipality” and “is not in harmony with the presumption of innocence” that usually applies when an accused is on bail (R. v. Doncaster, 2013 NSSC 328, 335 N.S.R. (2d) 331, at paras. 16-17; see also R. v. A.D.B., 2009 SKPC 120, 345 Sask. R. 134, at paras. 17 and 20; Trotter at pp. 6-41 to 6-44). Given the breadth of the condition, it is difficult to see how imposing an additional prohibition on the accused for violating any substantive law, whether a traffic ticket or failure to licence a dog, could be reasonable, necessary, least onerous, and sufficiently linked to an accused’s flight risk, risk to public safety and protection, or risk to maintaining confidence in the administration of justice (see S.K., at para. 39). 

[95] Fourth, broad conditions requiring an accused to follow or be amenable to the rules of the house or follow the lawful instructions of staff at a residence may be problematic, especially for accused youth. In J.A.D., the Court of Queen’s Bench for Saskatchewan found that such a condition was void for vagueness and an improper delegation of the judicial function (para. 11). These types of conditions prevent the accused from understanding what they must do to avoid violating their condition, as the rules of the house can change based on the whims of the person who sets them (K. (R.), at paras. 19-22). Imposing a condition that delegates the creation of bail rules to a surety or anyone else bypasses the judicial official’s obligation to uphold the principles of restraint and review and assess whether the rules of the house truly address any of the risks posed by the accused.

[96] Fifth, certain conditions may cause perverse consequences or unintended negative impacts on the safety of the accused or the public. These unintended effects underscore the need for careful and rigorous review of each bail condition. For example, a condition that prevents an accused person from using a cellphone may prevent them from calling for help in the event of an emergency or inhibit their ability to work or care for dependents (Prychitko, at paras. 19-25; Trotter, at pp. 6-44 to 6-45). Other conditions may hinder the administration of justice by punishing accused persons who are otherwise the victims of crime. In Omeasoo, police responded to a complaint of domestic assault where Ms. Omeasoo was the victim. However, she was arrested and charged for failure to comply because she had consumed alcohol contrary to her bail condition (para. 6). She was therefore charged for the offence of being intoxicated while being the victim of an assault. While one hopes that prosecutorial discretion would help prevent these types of unintended consequences, such conditions may become a disincentive to reporting serious crime and significantly increase the vulnerability of certain people.

[97] Further examples of conditions with perverse consequences include “red zone” conditions which prevent an accused from entering a certain geographical area and “no drug paraphernalia” conditions. These conditions may have especially significant impacts on marginalized accused persons. “Red zone” conditions can isolate people from essential services and their support systems (Sylvestre, Blomley and Bellot). Paraphernalia prohibitions can encourage the sharing of needles if accused persons are not able to carry their own clean needles (Pivot Report, at pp. 89-95). In fact, a guideline for bail conditions for accused persons with substance use disorders released in 2019 by the Public Prosecution Service of Canada has acknowledged that these types of conditions “should generally not be imposed” (Public Prosecution Service of Canada Deskbook, Part. III, c. 19, “Bail Conditions to Address Opioid Overdoses” (updated April 1, 2019) (online)). Overall, the impacts of these conditions emphasize that any proposed bail condition needs to be carefully considered and limited to addressing flight risk, public safety, or confidence in the administration of justice, otherwise the condition may have negative unintended consequences on the accused and the public.

[98] Finally, I note that some bail conditions may impact additional Charter rights of the accused, beyond their right to be presumed innocent, liberty rights (s. 7), and right to reasonable bail (s. 11(e)). Principles of restraint and review require that judicial officials rigorously examine these conditions and determine whether they do infringe the Charter. For example, some accused are subject to bail conditions that require them to submit to searches of their person, vehicle, phone, or residence on demand without a warrant (see, e.g., R. v. Delacruz, 2015 MBQB 32; R. v. Tithi, 2019 SKQB 299, [2019] S.J. No. 299, at para. 14 (QL); R. v. Sabados, 2015 SKCA 74, 327 C.C.C. (3d) 107). As noted by this Court in Shoker, in the context of probation conditions, a judge does not have jurisdiction to impose a condition that subjects an accused to a lower standard for a search than would otherwise be required, unless Parliament creates a Charter-compliant statutory scheme for the search or the accused consents to the search (paras. 22 and 25; see also R. v. Goddard, 2019 BCCA 164, 377 C.C.C. (3d) 44, at para. 53; R. v. Nowazek, 2018 YKCA 12, 366 C.C.C. (3d) 389, at para. 128). These types of conditions are effectively enforcement mechanisms that “facilitate the gathering of evidence”, “do not simply monitor the [accused’s] behaviour”, and are not linked to an accused’s risk under s. 515(10) (Shoker, at para. 22). As such conditions are not supported by the enumerated conditions for bail in s. 515, nor is there a scheme set by Parliament for the searches, they are constitutionally suspect.

[99] Other conditions can also affect an accused’s freedom of expression or freedom of association (see, e.g., R. v. Singh, 2011 ONSC 717, [2011] O.J. No. 6389, at paras. 41-47 (QL); see Manseau, at p. 10; Clarke). Such conditions that restrict additional Charter rights must be rigorously assessed to determine whether such a restriction is justified and proportional to the risk posed by the accused. It must always be remembered that by making such a condition on bail, the judicial official is criminalizing the accused’s exercise of their Charter rights at a time when they are presumed innocent prior to trial.

Everyone's Responsibilities in Respect of Bail Conditions

[100] .... The setting of bail is an individualized process and there is no place for standard, routine, or boilerplate conditions, whether the bail is contested or is the product of consent. The principle of review means everyone involved in the crafting of conditions of bail should stop to consider whether the relevant condition meets all constitutional, legislative, and jurisprudential requirements.

[101] All participants in the bail system also have a duty to uphold the presumption of innocence and the right to reasonable bail (see Berger and Stribopolous, at pp. 323-24). This is because the “automatic imposition of bail conditions that cannot be connected rationally to a bail-related need is not in harmony with the presumption of innocence” (R. v. A.D.M., 2017 NSPC 77, at para. 29 (CanLII), citing Antic). The Crown, defence, and the court all have obligations to respect the principles of restraint and review. Other than in reverse onus situations, the Crown should understand, and if asked, be able to explain why proposed bail conditions are necessary, reasonable, least onerous, and sufficiently linked to the risks in s. 515(10). This prosecutorial responsibility of restraint when considering bail conditions is reflected in both Crown counsel policy documents put before us by interveners (Ontario, Ministry of the Attorney General, Ontario Prosecution Directive, “Judicial Interim Release (Bail)” (November 2017) (online); and British Columbia, Prosecution Service, Crown Counsel Policy Manual, “Bail — Adult” (April 2019) (online)). Defence counsel also should be alive to bail conditions that are not minimal, necessary, reasonable, least onerous, and sufficiently linked to an accused’s risk for both contested and consent release, especially when a client may simply be prepared to agree to excessive and overbroad conditions to gain release. That said, it is not uncommon for counsel to agree to a condition that may seem somewhat onerous but does not warrant turning the matter into a contested hearing, which could result in the accused having to stay in custody for a few more days. In such cases, counsel can also seek a review of the condition after a reasonable length of time and ask that it be altered.

[102] Ultimately, the obligation to ensure that accused persons are released on appropriate bail orders lies with the judicial official. As with the setting of cash deposits in Antic, if a judicial official does not understand how a condition is appropriate, “a justice or a judge setting bail is under a positive obligation” to make inquiries into whether the suspect bail condition is necessary, reasonable, least onerous, and sufficiently linked to the accused’s risks (paras. 56 and 67(i)). Before transforming bail conditions into personal sources of potential criminal liability, judicial officials are asked to use their discretion with care and review the proposed conditions to make sure they are focussed, narrow, and tightly-framed to address the accused’s risks.

[105] .... Judicial officials “should not routinely second-guess joint proposals” given that consent release remains an efficient method of release in busy bail courts (Antic, at para. 68). However, everyone should also be aware that judicial officials have the discretion to reject overbroad proposals, and judicial officials must keep top of mind the identified concerns with consent releases. In R. v. Singh, 2018 ONSC 5336, [2018] O.J. No. 4757, Hill J. noted that, even post-Antic, counsel sometimes do not appear aware of this judicial discretion:

Too often, as is evident from some transcripts of show cause hearings coming before this court, counsel conduct themselves as though a “consent” bail governs the release/detention result with all that is required of the court is a signature. At times, outright hostility is exhibited toward a presiding justice of the peace who dares to make inquiries, to require more information, or to reasonably challenge the soundness of the submission. This is fundamentally wrong. [para. 24 (QL)]

[106] I agree. Although bail courts are busy places, where consent releases can encourage efficiency, little efficiency is achieved if an accused person is released on conditions by which they cannot realistically abide, which will inevitably lead to greater use of court time and resources through applications for bail review, bail revocation, or breach charges. Judicial officials must therefore act with caution, with their eyes wide open to the consequences of imposing bail conditions, when reviewing and approving consent release orders.

Components of Subjective Mens Rea for 145(3)

[109] Subjective mens rea generally must be proven with respect to all circumstances and consequences that form part of the actus reus of the offence (Sault Ste. Marie, at pp. 1309-10; Pappajohn v. The Queen, 1980 CanLII 13 (SCC), [1980] 2 S.C.R. 120, at p. 139, per Dickson J., dissenting, but not on this point). Therefore, subjective mens rea under s. 145(3) can be satisfied where the following elements are proven by the Crown:

1.      The accused had knowledge of the conditions of their bail order, or they were wilfully blind to those conditions; and

2.      The accused knowingly failed to act according to their bail conditions, meaning that they knew of the circumstances requiring them to comply with the conditions of their order, or they were wilfully blind to those circumstances, and failed to comply with their conditions despite that knowledge; orThe accused recklessly failed to act according to their bail conditions, meaning that the accused perceived a substantial and unjustified risk that their conduct would likely fail to comply with their bail conditions and persisted in this conduct.

[110]  These elements accord with the mens rea required in jurisdictions recognizing a subjective mens rea for failure to comply offences by requiring that the Crown show beyond a reasonable doubt that the accused knowingly or recklessly breached the condition (Legere, at para. 100; Custance, at para. 10).

[112]  I prefer the alternative approach. An accused must know or be wilfully blind to their conditions in order to be convicted, although the accused does not need to know the legal consequences or the scope of the condition: see, e.g., R. v. Smith, 2008 ONCA 101, 233 O.A.C. 145 (Doherty, Borins, Lang JJ.A., per curiam); R. v. Brown,2008 ABPC 128, 445 A.R. 211;.... I accept the position of the Court of Appeal for Ontario in Smith, which held that the fact that the accused misheard the terms of his recognizance and failed to review those terms meant that he did not knowingly breach his condition, nor was he wilfully blind. The accused must know the conditions of their release in order to possess the mens rea for the failure to comply offence.

[113] .... For a court to find that an accused was wilfully blind in the context of a failure to comply offence, the accused has to know there was a need for inquiry, and deliberately decline to make the inquiries necessary to confirm their exact bail condition (Smith, at para. 5; Withworth, at para. 13). 

[114] .... While subjective mens rea for s. 145(3) means that an accused person who has an honest but mistaken belief about the conditions of their bail order cannot be found liable, this does not mean that an accused must know and understand their legal obligations to fulfill those conditions. Genuinely forgetting a condition could be a mistake of fact and would negate mens rea, whereas a mistake regarding the legal scope or effect of a condition is a mistake of law and would not be an excuse for non-compliance with the condition (see Withworth, at paras. 16-19, per Trotter J.). In Custance, for example, the accused knew he had to stay at a certain apartment, but when he could not get into that apartment he chose to sleep in his car as he thought this would meet his condition. The accused was aware of his bail condition, but made a mistake as to what the law required to meet that condition. This was a mistake of law that did not negate mens rea.

[116] The second component of the mens rea for s. 145(3) can be met by showing that the accused acted knowingly or recklessly in breaching their condition. Knowledge in this second component means that the accused must be aware of, or be wilfully blind to, the factual circumstances requiring them to act (or refrain from acting) to comply with their conditions at the time of breach (e.g., in Mr. Zora’s case, knowing that the police were at his door).

[117] ... Recklessness requires that accused persons be aware of the risk of not complying with their condition and proceed in the face of that risk (Josephie, at para. 30; Sansregret v. The Queen, 1985 CanLII 79 (SCC), [1985] 1 S.C.R. 570, at p. 584). Knowledge of risk is key to recklessness. Therefore, the accused must still know of their bail conditions in order to be aware of any risk of non-compliance. The accused must also be aware of the risk that the factual circumstances requiring them to act (or refrain from acting) to comply with their bail conditions could arise and continue with their course of conduct despite the risk. Recklessness is not, and should not through misapplication, become the same as negligence. Recklessness has nothing to do with whether the accused ought to have seen the risk in question, but whether they subjectively saw the risk and continued to act with disregard to the risk. 

[118] Given that s. 145(3) can operate to criminalize otherwise lawful day-to-day behaviour, I would conclude that knowledge of any risk of non-compliance is not sufficient to establish that an accused was reckless. Instead, the accused must be aware that their continued conduct creates a substantial and unjustified risk of non-compliance with their bail conditions. This Court has previously adopted this standard of risk in describing recklessness for certain offences (see R. v. Hamilton, 2005 SCC 47, [2005] 2 S.C.R. 432, at paras. 27-29; Leary v. The Queen, 1977 CanLII 2 (SCC), [1978] 1 S.C.R. 29, at p. 35 (per Dickson J. dissenting, but not on this point)). The risk cannot be far-fetched, trivial, or de minimis. The extent of the risk, as well as the nature of harm, the social value in the risk, and the ease with which the risk could be avoided, are all relevant considerations (Manning and Sankoff, at p. 229). Although the trial judge will assess whether a risk is unjustified based on the above considerations, because recklessness is a subjective standard, the focus must be on whether the accused was aware of the substantial risk they took and any of the factors that contribute to the risk being unjustified.

[119] ... For example, in the context of a condition requiring an accused to answer the door to police during their curfew, an accused would not be reckless if they took the minimal and justified risk of taking a short shower during their curfew whereas they could be reckless if they disconnected their doorbell or wore earplugs around their house. ...

[120] Finally, I do not accept that a subjective fault requirement would make it too difficult for the Crown to prove an accused’s knowing or reckless failure to comply with bail conditions. If the Crown chooses to lay a criminal charge under s. 145(3), when the possibility of a bail variation and bail revocation also exist, it will do so only when it has a reasonable prospect of conviction based on a full appreciation of all constituent elements of the offence. Many crimes have a subjective fault standard and there are recognized ways to marshal sufficient evidence to convince a judge beyond a reasonable doubt that the accused acted knowingly or recklessly. Courts may infer subjective fault for failure to comply charges, whether or not the accused decides to testify. ...As noted by the intervener Attorney General of Ontario a subjective fault requirement has not prevented convictions on s. 145(3) charges in Ontario.Conclusion

[123] I agree with Mr. Zora that a new trial should be ordered in light of the error in law by the courts below in applying an objective rather than a subjective standard of fault for s. 145(3).

[125] ... If established at trial, Mr. Zora’s personal circumstances, including whether he was sleeping deeply due to heroin withdrawal and methadone treatment, would be relevant to determining his state of mind. As described above, recklessness requires knowledge of the substantial and unjustified risk of circumstances leading to a prohibited breach. Without a clear finding that Mr. Zora was aware of the risk that he could not hear the police at his door, as well as other findings of fact necessary to determine whether that risk was substantial and unjustified, the Court cannot find that he was reckless in failing to answer the door.

[126] The trial judge’s negative statements concerning the credibility of the defence witnesses mean that an acquittal would also not be appropriate. A new trial is needed to address whether Mr. Zora knowingly or recklessly breached his conditions.

R v Santana (ONCA) 

[June 11, 2020] Charter s.8 - Search Incident to Arrest on a Warrant - 2020 ONCA 365 [Reasons by Doherty J.A. with Watt and Miller JJ.A. concurring]

AUTHOR’S NOTE: The power of police to search incident to arrest is not a one size fits all solution.  The police in question must consider whether their actions are legally justifiable in the individual case.  For example, an arrest for drug possession includes the authority to further search for drugs in the immediate area around the accused or his person.  An arrest for a warrant for breach of conditions does not; this case demonstrates the application of this principle. 

Pertinent Facts

[7] The appellant was under investigation by a police task force headed by the OPP. The task force was investigating large scale drug trafficking in northeast Ontario. Officers assigned to the task force learned the appellant was in Thunder Bay. He was required to remain in Ottawa under the terms of his bail. The officers commenced surveillance. They saw the appellant with a woman in a Jeep Cherokee. The vehicle made several brief stops.

[8] The officers conducting the surveillance contacted the local Thunder Bay police and provided a description of the appellant and the vehicle. They asked the Thunder Bay police to stop the vehicle. The officers indicated the appellant was wanted on two outstanding warrants, one a province-wide warrant, and was in breach of the terms of his bail order. The officers also advised the Thunder Bay police the taillights of the appellant’s vehicle were not operating.

[9] Thunder Bay police officers, Milionis and Bliss, were on patrol. They saw the Jeep Cherokee. A woman was driving and a person they believed to be the appellant was sitting in the front passenger seat. The officers confirmed through CPIC, the existence of the outstanding warrants. They also noted the rear lights were not functioning. They decided to stop the vehicle for the taillight infraction and arrest the appellant on the province-wide warrant.

[11] Officer Bliss stood by the passenger door. After the appellant falsely identified himself as “Dave”, Officer Milionis told Officer Bliss to arrest the appellant on the province-wide warrant.

[12] Officer Bliss removed the appellant from the vehicle and handcuffed him. He told the appellant he was under arrest on the outstanding warrant and advised him of his right to counsel. Officer Bliss conducted a pat down search and located the appellant’s wallet. The wallet contained the appellant’s identification. Officer Bliss took the appellant to a second Thunder Bay police cruiser that had arrived on the scene and placed him in the back seat.

[13] Officer Bliss testified his arrest of the appellant had nothing to do with any suspected drug activity by the appellant. He agreed he had no reason connected to suspected drug trafficking to either stop the Jeep Cherokee, or arrest the appellant.

[15] After Officer Bliss had placed the appellant in the back of the police cruiser, he returned to the Jeep Cherokee “to get the rest of his [appellant’s] belongings from the vehicle”. According to Officer Bliss, he took it upon himself to look for and gather the appellant’s belongings from the Jeep Cherokee because he anticipated the appellant would be held in custody overnight. It is implicit in Officer Bliss’s testimony he chose to gather the appellant’s belongings from the Jeep Cherokee, anticipating the woman would drive the vehicle away after the Highway and Traffic Act matter was adequately addressed. The police had no grounds to hold the driver or the vehicle. Officer Bliss did not ask the appellant if he wanted the police to gather his belongings from the Jeep Cherokee and take them back to the station.

[16] In cross-examination, Officer Bliss gave an additional reason for the search of the vehicle which led to the discovery of the jacket. He testified that he understood he was entitled to search the immediate area around where the appellant had been sitting in the Jeep Cherokee at the time of his arrest “for officer safety”....

[17] Officer Bliss testified when he looked into the passenger side of the Jeep Cherokee, he saw a jacket lying on the back floor between the two front seats. He assumed the jacket belonged to the appellant because it was a cold night, and the driver had her jacket on.

[18] Officer Bliss removed the jacket from the Jeep Cherokee, intending to put the jacket into the police cruiser to take it back to the station with the appellant. Before putting the jacket in the cruiser, he searched the pockets, checking for weapons or other objects relevant to police safety.

[19] The officer found a Ziplock bag containing 495 pills, which appeared to be Percocet. They were later identified as Fentanyl. The appellant and the driver were arrested on a charge of trafficking in narcotics and advised of their right to counsel.

[20] Officers Bliss and Milionis conducted a further search of the vehicle as an incident to the arrest on the charge of trafficking in narcotics. They also searched the driver. The police found two cellphones, one in the vehicle, and one in the driver’s purse. A subsequent review of the text messages visible on one of the cellphones revealed communications consistent with language used in drug trafficking.

[21] ... The discovery of the pills in the jacket seized from the Jeep Cherokee played a central role in the grounds relied on to obtain the warrant. The warrant issued and the subsequent search of the hotel room produced thousands of Fentanyl pills.


[22] Officer Bliss’s decision to look inside of the vehicle for things belonging to the appellant and his decision to take possession of the jacket, both decisions made without the consent of the appellant or the driver, constituted a search and seizure for the purposes of s. 8 of the Charter: see R. v. Reeves, 2018 SCC 56. I do not understand the Crown to suggest otherwise. The subsequent search of the pockets of the jacket was also a search for s. 8 purposes.

[23] The search of the vehicle, the seizure of the jacket, and the subsequent search of the jacket were not authorized by a warrant. The onus fell on the Crown to demonstrate the searches and seizure were nonetheless reasonable within the meaning of s. 8 of the Charter: see R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51, at para. 11; R. v. Valentine, 2014 ONCA 147, at para. 43; R. v. Aviles, 2017 ONCA 629, at paras. 13-15. In this case, the Crown argues the warrantless search and seizure were lawful as incidental to the appellant’s lawful arrest on the outstanding warrant. A warrantless search and seizure will be lawful if truly incidental to the arrest, and conducted in a reasonable manner: R. v. Fearon, 2014 SCC 77 (CanLII), [2014] 3 S.C.R. 621, at para. 20.[25] A search is properly characterized as an incident to arrest only if the search is conducted for a valid purpose connected to the arrest: R. v. Nolet2010 SCC 24 (CanLII), [2010] 1 S.C.R. 851, at paras. 51-52R. v. Balendra2019 ONCA 68, at paras. 44-47. In R. v. Caslake, at para. 25, Lamer C.J.C. said:

If the law on which the Crown is relying for authorization is the common law doctrine of search incident to arrest, then the limits of this doctrine must be respected. The most important of these limits is that the search must be truly incidental to the arrest. This means that the police must be able to explain, within the purposes articulated in Cloutier, supra, (protecting the police, protecting the evidence, discovering evidence) or by reference to some other valid purpose, why they searched. They do not need reasonable and probable grounds. However, they must have some reason related to the arrest for conducting the search at the time the search was carried out, and that reason must be objectively reasonable.

[26] As Caslake, and the many cases that have applied Caslake instruct, a court, in deciding whether a particular search was a lawful incident to an arrest, must determine:

  •      the purpose for which the officer conducted the search;
  •      whether that purpose was a valid law enforcement purpose connected to the arrest; and
  •      whether the purpose identified for the search was objectively reasonable in the circumstances.

[27] ... I think the appellant’s constitutional argument stands or falls on the lawfulness of Officer Bliss’s examination of the contents of the vehicle and his seizure of the jacket. If those acts were lawfully incidental to the appellant’s arrest, I would have no difficulty in holding a search of the pockets of the jacket before it was placed in the police cruiser was justified for police safety purposes as a lawful incident of the appellant’s arrest. If, however, the visual inspection of the inside of the Jeep and the seizure of the jacket were not incidental to the arrest, and were therefore unreasonable within the meaning of s. 8, it cannot assist the Crown that the police had legitimate safety concerns associated with the possession and control of the unlawfully seized jacket. If the visual search of the interior of the vehicle and the seizure of the jacket from the vehicle were not incidental to the appellant’s arrest, the subsequent search of the pockets of the jacket could not be incidental to that arrest.

[28] The scope of the power to search as an incident to an arrest is fact-specific: R. v. Fearon, at para. 13. Valid police purposes associated with searches incidental to arrest include police safety, public safety, securing evidence, and discovering evidence. Two points should be stressed. First, the purpose relied on to justify the search at trial must have been the actual reason the police conducted the search. After-the-fact justifications that did not actually cause the police to conduct the search or seizure will not do. Second, the police purpose must be related to the specific reason for the arrest. Here, the appellant was arrested because there was a province-wide warrant for his arrest for driving while under suspension. Any search said to be justified as a search for evidence had to be evidence in respect of his arrest on the outstanding warrant, and not evidence connecting him to other possible offences such as drug trafficking: see Caslake, at paras. 22-25.

[29]... In the circumstances of this case, evidence gathering provided no justification for the visual search of the vehicle, the seizure of the jacket, or the search of the jacket.

[30] The reasonableness, and hence the lawfulness, of Officer Bliss’s actions turns on whether he had any authority to visually inspect the inside of the vehicle for property belonging to the appellant and, if he located any property, to seize that property and take it to the police station. Counsel did not refer to any statutory authority for Officer Bliss’s actions. I am not aware of any.

[31] ... Officer Bliss wrongly believed he was entitled to seize the appellant’s property because the appellant was under arrest and was being taken back to the police station. By unlawfully searching the vehicle and taking possession of the jacket, Officer Bliss created a justification for the search of the pockets of the jacket before it was placed in the police cruiser.

[32] There are circumstances when the police arrest a person in a vehicle in which the police are authorized, indeed required, to take control of, and responsibility for the vehicle and its contents. In those circumstances, the police are also sometimes authorized to itemize and secure the contents of the vehicle: e.g. see R. v. Russell, 2018 BCCA 330; R. v. Cuff, 2018 ONCA 276. Those circumstances did not exist here.

[33] The Thunder Bay police had no intention of taking control of the vehicle when Officer Bliss went looking for the appellant’s belongings and seized the jacket. To the knowledge of Officer Bliss and Officer Milionis, the woman driving the vehicle would be on her way, wherever she was going, once the Highway Traffic Act matter had been addressed. The police had no authority to prevent the driver from leaving with the vehicle after the Highway Traffic Act matter was completed....

[51] [New trial ordered due to impossibility of conducting 24(2) analysis on the record of the case]

R v Johnson (ONSC)

[June 11, 2020] – Jury - Challenge for Cause - Expansion of the R v Parks Questions – 2020 ONSC 3673 [Barnes J.]

AUTHOR’S NOTE: Although this decision does not deal with the change in the decision-maker for Challenge for Cause applications, it is an excellent springboard for the argument that the standard Parks question is unequal to the task of selecting a racially impartial jury. Multiple or open-ended questions are far superior at getting to the truth of the issue of partiality for many reasons that have been identified in the case law of the years including: people do not want to label themselves racist, people may not know they hold racially biased views if they have never been exposed to contrary opinion, etc...

Pertinent Facts

[1] Trayon Johnson and Richard Ireland are charged with second degree murder for the killing of Mark Chavez, and with the attempted murder of Jackson Merizzi.

[3] Trayon Johnson is a black man, and Richard Ireland is white. The victim, Jackson Merizzi, is white, and the deceased, Mark Chavez, is Latino. The racial overtone of the offence and allegations is obvious. Mr. Ireland is not participating in this motion.


[7] I take judicial notice that racial stereotypes and racial bias exist in society.  These stereotypes can negatively and adversely impact a potential juror’s ability to be impartial. In the modern era, in cases with racial overtones, the use of an appropriately-worded challenge for cause is indispensable to the effort to ensure that prospective jurors are able and willing to set aside any racial biases and adjudicate trials impartially. In effect, there is no need to provide an evidentiary basis to support this proposition: R. v. Rollocks, 1994 CanLII 8728 (ON CA), [1994] O.J. No. 1458 (C.A.), at para. 49.

[8] Canadian jurisprudence has acknowledged that anti-black bias is entrenched in some individuals, societies and institutions. Such attitudes, conduct, and beliefs are so engrained in the subconscious that judicial cleansing alone is insufficient to ensure impartially: Parks, at para. 59. An approach that limits the effects of racial stereotypes to blacks, to the exclusion of other minorities, is one that is not in touch with the reality of the attributes and effects of racial discrimination. In R. v. Koh, 1998 CanLII 6117 (ON CA), [1998] O.J. No. 5425 (C.A.), at para. 30, Finlayson J.A. writing for a unanimous court concluded that “[t]he prejudice, where it occurs, is triggered by skin color. The same would apply to all visible non-Caucasian minorities”.

[9].... It has been acknowledged that the Parks question suggests a politically-correct response and is too simplistic. This is because it does not adequately capture the contemporary understanding of racism and racial bias in Canadian society: R. v. Wilson, 1996 CanLII 376 (ON CA), [1996] O.J. No. 1689 (C.A.), at para. 21; R. v. Johnson, 2010 ONSC 5190, at para. 15.

[10] Contemporary understandings of racism and racial bias acknowledge and place appropriate weight on the effects of unconscious racial bias: R. v. Williams, 1998 CanLII 782 (SCC), [1998] 1 S.C.R. 1128, at paras. 20-21. In effect, the modern understanding of racism and racial bias acknowledges that “good” people can also have unconscious racial bias. This circumstance is aptly described by Durno J. in R. v. Douse, 2009 CanLII 34990 (ON SC), [2009] O.J. No. 2874 (S.C.), at para. 190 as follows:

There are potential jurors who harbour racist attitudes below their threshold of consciousness, deep in their psyche. Those beliefs may have been taught or otherwise acquired. Their anti-black bias is based on unstated and unchallenged assumptions learned over a lifetime. Parks, para. 58. The holder may believe they are accurate or for other reasons that their views do not reflect prejudices. The holder may honestly believe they are not biased because they have not examined their beliefs to determine if they hold prejudiced views, perhaps because they have never been required to do so.

[12] Canadian courts have acknowledged that appropriately-constructed multiple-choice challenge for cause questions are more probative and potentially better able to identify the vexing subconscious racism issue than the standard “yes/no” format of the Parks question: R. v. Valentine, [2009] O.J. No. 5961 (S.C.), at paras. 9-11; R. v. Smith, May 11, 1999 (unreported), at pp. 1-2 (Ont. Gen. Div.); R. v. Kelly, January 7, 1998 (unreported), at pp. 4-5 (Ont. Gen. Div.); Douse, at paras. 222-223; R. v. Lewis, 2011 ONSC 7631, at paras. 3-5.

[14] In Brooks, I concluded that the multiple-choice question simply replaced one suggested politically-correct question (the Parks question) with multiple politically-correct questions. I failed to see the utility of multiple-choice questions in Brooks. However, in this case, a detailed consideration of the prevalence and effects of subconscious racial bias and the multiple-choice questions proposed has led me to a different conclusion. 

[15] The human phenomenon referred to as subconscious racial bias was aptly described by expert testimony and accepted in R. v. Griffis, [1993] O.J. No. 3314 (Gen. Div.), at para. 12, as follows:

The person may say “No” because they generally believe they are not racist because they are not that bigots, or they may say “No” because it is commonly accepted in our society that harboring bias or prejudice is a value we do not regard, and therefore, it should not be admitted even if one felt it privately. So I think there are constraining factors which would make a person say “No” and the evaluator then will have no sense of whether the “No” was an honest genuine “No” – “No”, I am not biased and I will not be “affected” or whether the “No” reflected a society socially accepted response, or whether the “No” indicates a lack of insight and conscious awareness of racial bias.

[16] The danger that unexplored subconscious racial bias can adversely impact a prospective juror’s ability to be impartial and potentially lead to a wrongful conviction is too important to ignore. However, simply proffering a multiple-choice question does not automatically mean that the question is superior to the standard Parks questions. The questions as constructed must be more effective than the standard Parks question in unlocking the mental vault of subconscious racial bias. For example, the questions must stimulate the introspection and truthfulness necessary to enable the prospective juror and the trier of the challenge to determine whether the juror can set aside any overt or subconscious prejudices to render an impartial verdict. In other words, not all multiple-choice questions are created equal: Brooks, at para. 31.

[17] In this case, I am satisfied that the multiple-choice questions proposed by the parties would be more effective than the standard Parksquestion and would help determine whether the prospective juror “can judge the evidence of the witnesses without bias, prejudice or partiality”.

Each prospective juror shall be read and asked the following:

The Crown alleges that the offences charged were committed by the two co-accused individuals. One of the defendants, Mr. Trayon Johnson, is a black man.

In deciding whether or not the prosecution has proven the charges against the defendant, a juror must attempt to judge the evidence of the witnesses without bias, prejudice, or partiality.

I am going to ask you two questions. After you hear each question, you will be asked to select an answer from a list of multiple-choice options.

Question 1

Some people believe that members of certain racial or ethnic groups are more likely than others to commit certain types of crimes or violence.

Do you believe that black men are more likely than other men to commit certain types of violent crimes?

Which of the following answers most accurately reflects what you believe:

a) I strongly agree.

b) I agree, but not strongly.

c) I disagree, but not strongly.

d) I strongly disagree.

e) I don't know.

Question 2

As a result of attitudes that some people have grown up with, or experiences they have had, it may be more difficult for them to attempt to judge the evidence of the witnesses without bias, prejudice or partiality.

Might you be even slightly hesitant in your ability to judge the case fairly given that one of the individuals charged is a black man, one of the victims is white, and the other victim had a white mother and a Latino father?

Which answer most accurately reflects your answer to that question:

a) I would not be able to judge the case fairly.

b) I might be able to judge the case fairly.

c) I would be able to judge the case fairly.

d) I do not know if I would be able to judge the case fairly.