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SCC File No. 38540 in the SUPREME COURT of CANADA

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SCC File No. 38540 in the SUPREME COURT of CANADA SCC File No. 38540 IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL OF BRITISH COLUMBIA) B E T W E E N : CHAYCEN MICHAEL ZORA Appellant - and - HER MAJESTY THE QUEEN Respondent - and – ATTORNEY GENERAL OF ONTARIO, ATTORNEY GENERAL OF BRITISH COLUMBIA, CRIMINAL LAWYERS’ ASSOCIATION OF ONTARIO, VANCOUVER AREA NETWORK OF DRUG USERS, BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION, CANADIAN CIVIL LIBERTIES ASSOCIATION, INDEPENDENT CRIMINAL DEFENCE ADVOCACY SOCIETY, PIVOT LEGAL SOCIETY, and ASSOCIATION QUÉBÉCOISE DES AVOCATS ET AVOCATES DE LA DÉFENSE INTERVENERS __________________________________________________________________ FACTUM OF THE INTERVENER, CRIMINAL LAWYERS’ ASSOCIATION OF ONTARIO (Pursuant to Rule 42 the Rules of the Supreme Court of Canada) ____________________________________________________________________ CHRISTINE MAINVILLE COLLEEN BAUMAN Henein Hutchison LLP Goldblatt Partners LLP 235 King Street East 30 Metcalfe Street, Suite 500 Toronto, Ontario M5A 1J9 Ottawa, ON K1P 5L4 Tel: 416-368-5000 Tel: (613) 482-2463 Fax: 416-368-6640 Fax: (613) 235-3041 [email protected] [email protected] Counsel for the Intervener, Criminal Ottawa Agent for the Intervener, Criminal Lawyers’ Association of Ontario Lawyers’ Association of Ontario TO: THE REGISTRAR OF THE SUPREME COURT OF CANADA AND TO: SARAH RUNYON MICHAEL J. SOBKIN GARTH BARRIERE 331 Somerset Street West Marion & Runyon, Criminal Lawyers Ottawa, ON K2P 0J8 1301 Cedar Street Campbell River, BC V9W 2W6 Tel: (250) 286-0671 Tel: (613) 282-1712 Fax: (250) 287-7361 Fax: (613) 288-2896 [email protected] [email protected] Counsel for the Appellant Ottawa Agent for the Appellant RYAN J. CARRIER FRANCOIS LACASSE Public Prosecution Service of Canada Public Prosecution Service of Canada 900-840 Howe Street 160 Elgin Street, 12th Floor Vancouver, BC V6Z 2S9 Ottawa, ON K1A 0H8 Tel: (604) 666-5250 Tel: (613) 957-4770 Fax: (604) 666-1599 Fax: (613) 941-7865 [email protected] [email protected] Counsel for the Respondent Ottawa Agent for the Respondent SUSAN L. REID KAREN PERRON Attorney General of Ontario Borden Ladner Gervais LLP 720 Bay Street 1300-100 Queen Street 10th Floor Ottawa, ON K1P 1J9 Toronto, ON M5G 2K1 Tel: 613.369.4795 Tel: 416.326.2682 Fax: 613.230.8842 Fax: 416.326.4656 [email protected] [email protected] Counsel for the Intervener, Ottawa Agent for the Intervener, Attorney General of Ontario Attorney General of Ontario SUSANNE E. ELLIOTT ROBERT E. HOUSTON, Q.C. Attorney General of British Columbia Gowling WLG (Canada) LLP Criminal Appeals & Special Prosecutions 160 Elgin Street 6 th Floor, 865 Hornby Street Suite 2600 Vancouver, BC V6Z 2G3 Ottawa, ON K1P 1C3 Tel: 604.660.1126 Tel: 613.783.8817 Fax: 604.660.1133 Fax: 613.788.3500 [email protected] [email protected] Counsel for the Intervener, Ottawa Agent for the Intervener, Attorney General of British Columbia Attorney General of British Columbia: DAVID N. FAI COLLEEN BAUMAN David N. Fai Law Corporation Goldblatt Partners LLP Barrister and Solicitor 30 Metcalfe Street, Suite 500 300-1401 Lonsdale Ave. Ottawa, ON K1P 5L4 North Vancouver, BC V7M 2H9 Tel.: 613.482.2463 Tel: 604.685.4150 Fax: 613.235.3041 Fax: 604.986.3409 [email protected] [email protected] CAITLIN O. SHANE Pivot Legal Society 121 Heatley Avenue Vancouver, BC V6A 3E9 Tel: 604.255.9700 Fax: 604.255.1552 [email protected] Counsel for the Intervener, Ottawa Agent for the Intervener, Pivot Legal Society Pivot Legal Society JASON B. GRATL MICHAEL J. SOBKIN TOBY RAUCH-DAVIS 331 Somerset Street West Gratl & Company Ottawa, ON K2P 0J8 511-55 East Cordova Street Tel: 613.282.1712 Vancouver, BC. V6A 0A5 Fax: 613.288.2896 Tel: 604.694.1919 [email protected] Fax: 604.608.1919 [email protected] Counsel for the Intervener, Ottawa Agent for the Intervener, Vancouver Area Network of Drug Users Vancouver Area Network of Drug Users ROY W. MILLEN MAXINE VINCELETTE ALEXANDRA LUCHENKO Power Law DANNY URQUHART 130 Albert Street Blake, Cassels & Graydon LLP Suite 1103 595 Burrard Street, PO Box 49314 Ottawa, ON K1P 5G4 Suite 2600, Three Bentall Centre Tel: 613.702.5573 Vancouver, BC V7X 1L3 Fax: 604.702.5573 Tel: 604.631.3300 [email protected] Fax: 604.631.3309 [email protected] Counsel for the Intervener, Ottawa Agent for the Intervener, British Columbia Civil Liberties Association British Columbia Civil Liberties Association DANIELLE GLATT D. LYNNE WATT Paliare Roland Rosenberg Rothstein LLP Gowling WLG (Canada) LLP 155 Wellington Street West 160 Elgin Street 35th Floor Suite 2600 Toronto, ON M5V 3H1 Ottawa, ON K1P 1C3 Tel: 416.646.7440 Tel: 613.783.8817 Fax: 416.646.4301 Fax: 613.788.3500 [email protected] [email protected] Counsel for the Intervener, Ottawa Agent for the Intervener, Canadian Civil Liberties Association Canadian Civil Liberties Association JEFFREY T. CAMPBELL MATTHEW ESTABROOKS Peck and Company Gowling WLG (Canada) LLP 744 West Hastings Street 160 Elgin Street Suite 610 Suite 2600 Vancouver, BC V6C 1A5 Ottawa, ON K1P 1C3 Tel: 604.669.0208 Tel: 613.783.8817 Fax: 604.669.0616 Fax: 613.788.3500 [email protected] [email protected] Counsel for the Intervener, Ottawa Agent for the Intervener, Independent Criminal Defence Advocacy Independent Criminal Defence Advocacy Society Society NICHOLAS ST-JACQUES PAULINE LACHANCE Desrosiers, Joncas, Nouraie, Massicotte 500 Place d’Armes, Bureau 1940 Montreal, QC H2Y 2W2 Tel: 514.397.9284 Fax: 514.397.9922 [email protected] Counsel for the Intervener, Association québécoise des avocats et avocates de la défense TABLE OF CONTENTS PART I – OVERVIEW 1 PART II – QUESTIONS IN ISSUE 1 PART III – ARGUMENT 1 A. Administration of justice charges are clogging up the system 1 B. Breaches of recognizance target conduct that is not inherently 2 criminal C. There is an overreliance on conditions of release that are neither 4 tailored nor required D. The criminal justice system is manufacturing its own crime 8 E. All of these factors militate in favour of a subjective mens rea 9 PART IV – COSTS 10 PART V – ORDER SOUGHT 10 PART VI – TABLE OF AUTHORITIES 11 PART VII – LEGISLATION CITED 12 1 PART I – OVERVIEW 1. The offence of breach of recognizance is one of the most commonly-charged criminal offences. The proliferation of charges for this offence is in part due to the overreliance on conditions of release, and the failure to abide by the ladder principle. Bail practices across Canada are frequently at odds with constitutional, statutory and jurisprudential frameworks that are intended to favour pre-trial release on the least onerous conditions necessary. The majority of the Court of Appeal failed to account for the reality of how bail orders are crafted. 2. Uniquely, this offence’s main purpose is to address conduct that is not inherently criminal. Yet the consequences for an accused charged with breach of recognizance are serious. A charge or conviction for breach of recognizance means that it will be more difficult for the accused to be released in the future, and if the accused is released, it will be on more stringent conditions, thereby potentially leading to a cycle of re-offending and re-incarceration. 3. The above considerations support the conclusion that the mens rea for breach of recognizance is subjective, and that the Crown should be required to prove that the accused intended to breach a condition of release, or that – bearing in mind his or her particular characteristics – the accused was subjectively reckless or willfully blind to that possibility. PART II – POSITION ON QUESTIONS IN ISSUE 4. The CLA only takes a position in respect of the first question raised by the Appellant: whether Parliament intended s. 145(3) to attract an objective or subjective standard of fault. The CLA will argue that the standard is subjective. PART III – ARGUMENT A. Administration of justice charges are clogging up the system 5. Criminal charges for violating recognizance conditions are very common. The 2016/2017 statistics released by Statistics Canada confirm that failure to comply with a court order is one of the five most frequent charges faced by adults in Canada, representing nearly 10% of all charges 2 in adult criminal courts across the country.1 According to the Senate Committee for Legal and Constitutional Affairs’ report Delaying Justice is Denying Justice, administration of justice offences represent 23% of completed cases in adult criminal court, pertaining in large part to breaches of release conditions.2 6. As the Senate Committee aptly observed, these offences are “clogging the courts”.3 More specifically, the Committee’s report, which sought to address the systemic issue of delay in the criminal justice system, found that “administration of justice offences are taking up an inordinate amount of court time, which is thereby contributing to court delays for trials”.4 They represent a disproportionate number of prosecutions given the relative seriousness of the underlying conduct. 7. Indeed, the Senate Committee observed that administration of justice offences “rarely involve harm to a victim, other than to the justice system itself; they do not involve behaviour that is popularly considered ‘criminal’: rather they involve disobeying orders of the court or other parts of the justice system”.5 The Committee was particularly concerned about “cases where an accused person is back in court for minor matters, such as a breach of curfew or arriving late for trial”.6 1 Statistics Canada, Adult criminal and youth court statistics in Canada, 2016/2017, by Zoran Miladinovic (January 24, 2019), at p. 6. See also: Canadian Civil Liberties Association and Education Trust, Set Up to Fail: Bail and the Revolving Door of Pre-trial Detention, by Abby Deshman and Nicole Myers (July 2014), at pp. 2, 8 “CCLA Report”.
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