Oops! Breached Bail Conditions — Mistake as a Defence.

It states, in part:

(3) Every person who is at large on an undertaking or recognizance given to or entered into before a justice or judge and is bound to comply with a condition of that undertaking or recognizance… and who fails, without lawful excuse, the proof of which lies on them, to comply with the condition, direction or order is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or

(b) an offence punishable on summary conviction.

Criminal Code of Canada, R.S.C., 1985, c. C-46, section 145(3)

For example, if you are released with conditions to comply with a curfew, attend an anger management program, report to police on a regular basis, or any other condition, and you fail to comply with the ordered conditions, the consequence is a further criminal charge.  If you fight the charge, the Crown must prove not only the breach occurred (actus reas) but that you knowingly and voluntarily committed the breach (mens rea).  Manitoba Court of Appeal Justice Steel describes the elements of the offence:

The required elements of an offence under s. 145(3) are:

(1) that the Crown must prove that the accused was bound by an undertaking or recognizance;

(2) that the accused committed an act which was prohibited by that undertaking or recognizance or that the accused failed to perform an act required to be performed by that undertaking or recognizance; and

(3) that the accused had the appropriate mens rea, which is to say that the accused knowingly and voluntarily performed or failed to perform the act or omission which constitutes the actus reus of the offence.

R. v. Custance, 2005 MBCA 23 at para 10.

Proving that the breach occurred may be straight forward.  Proving that you possess a guilty mind may be quite another.   Both elements must be proven beyond a reasonable doubt in order for a conviction to occur.

Only the accused knows the subjective belief on which she or he acted in breaching the condition.  If the breach is caused by an innocent mistake (i.e. writing down the wrong trial date), that mistaken belief may provide a viable defence because the mens rea or “guilty mind” element of the offence is therefore not made out.

It is important to note, that there are two types of mistakes which may be raised in defence of this type of charge: mistake of fact and mistake of law.

Mistake of Fact

mistake of fact may be a valid defence.  The mistake of fact as a defence is described by the Supreme Court of Canada:

Mistake is a defence … where it prevents an accused from having the mens rea which the law requires for the very crime with which he is charged. Mistake of fact… avails an accused who acts innocently, pursuant to a flawed perception of the facts, and nonetheless commits the actus reus of an offence.

R. v. Ewanchuk, [1999] 1 S.C.R. 330 at para. 43

Bear in mind the words of Justice Thomas, however, who warned that the “reasonableness of the belief is a factor to be considered in determining if the defendant’s belief was honestly held.” R. v. Weishar [2003] O.J. No. 3065 at para 38.  Therefore, while a mistake of fact does raise a valid defence, the mistake must be accepted by the Court as reasonable.

Considering reasonableness, recklessness or willful blindness will not sustain the mistake of fact defence.  On the other hand, “mere carelessness or failure to take precautions that a reasonable person would take will not support a conviction.” R. v. Legere, [1995] O.J. No. 152 at para 32.

Mistake of Law

Compare this to a mistake of law, which, on the other hand, is not a defence.  The Supreme Court has articulated this type of mistake, stating:

It is a principle of our criminal law that an honest but mistaken belief in respect of the legal consequences of one’s deliberate actions does not furnish a defence to a criminal charge, even when the mistake cannot be attributed to the negligence of the accused.

R. v. Forster, [1992] 1 S.C.R. 339 at p. 346

In other words, ignorance of the law is not a defence.  This concept is codified in the Criminal Code, at section 19:

Ignorance of the law by a person who commits an offence is not an excuse for committing that offence.

Criminal Code of Canada, R.S.C., 1985, c. C-46, section 19

It may not always be obvious when a mistake is a mistake of law or a mistake of a fact.  If you failed to comply with a bail condition, contact a lawyer to find out if you may have a valid defence.

by Monick Grenier | Jul 24, 2016 |